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PRECEDENTS 

OF 

INDICTMENTS  AND  PLEAS, 

ADAPTED  TO  THE  USE  BOTH  OF  THE 

COURTS  OF  THE  UNITED  STATES 

AND  THOSE  OF  ALL  THE 

SEVERAL  STATES; 

TOGETHER  WITH  XOTES  ON 

CRIMINAL  PLEADING  AND  PRACTICE, 

EMBRACING  THE 

ENGLISH  AND  AMERICAN  AUTHORITIES  GENERALLY. 

BY 

FRANCIS  WHARTON,  LL.l)., 

AUTHOR  OF  TREATISES  ON  CRIMINAL  LAW  ;    ON  EVIDENCE  ;    ON  NEGLIGENCE  ; 
AND  ON  MEDICAL  JURISPRUDENCE, 

FOURTU  AND  REVISED  EDITION. 

VOL.  I. 


PHILADELPHIA: 
KAY  &  BROTHER,  17  AND  \\)  SOUTH  SIXTH  STREET, 

LAW  I300KSELLEJIS,  PUBLISHERS  AND  IMPoKTKRS. 

1881. 


JA'^  '^^/h^ 


T 


Entered  according  to  the  Act  of  Congress,  in  the  year  1848,  by 

Kay  and  Brother, 

in  the  Office  of  tlie  Clerk  of  the  District  Court  of  the  United  States  in  and  for  the 
Eastern  District  of  Pennsylvania. 

Entered  according  to  the  Act  of  Congress,  in  the  year  1857,  by 

Kay  and  Brother, 

in  the  Office  of  the  Clerk  of  the  District  Court  of  the  United  States  in  and  for  the 
Eastern  District  of  Pennsylvania. 

Entered  according  to  Act  of  Congress,  in  the  year  1871,  by 

Kay  and  Brother, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Entered  according  to  the  Act  of  Congress  in  the  year  1881,  by 

Francis  Wharton, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


COLLINS,     PRINTER, 


PREFACE  TO  FOURTH  EDITION. 


In  the  present  edition  several  superfluous  forms  have  been 
thrown  out ;  a  number  of  new  forms  have  been  introduced ; 
and  the  notes  have  been  carefully  revised  and  largely  in- 
creased. 

F.  W. 

Narragaxsktt  PiEi;,  R.  1., 

Aiujust  3,  1881. 

iii 


740118 


PREFACE  TO  THIRD  EDITION. 


In  the  following  pages  I  have  introduced  a  series  of  new 
precedents,  based  on  recent  legislation,  dropping  such 
forms  as  have  become  obsolete ;  and  I  have  added  to 
the  notes  such  English  and  American  decisions  on  crimi- 
nal pleading  as  have  appeared  since  the  last  edition  was 
prepared. 

F.  W. 

March,  1871. 


PREFACE  TO  SECOND  EDITION. 


In  this  edition  a  large  number  of  new  precedents  have 
been  added,  and  those  given  in  the  former  edition  modi- 
fied, so  as  to  adapt  the  collection,  as  far  as  is  practicable,  to 
the  practice  of  the  criminal  courts  at  the  present  period 
throughout  the  entire  Union.  In  addition  to  this,  both  the 
text  and  the  notes  have  been  remodelled  and  classified,  so 
as  to  place  them  on  a  uniform  basis,  both  as  to  interchange 
of  references,  and  harmony  of  subject  matter,  with  the 
fourth  and  revised  edition  of  my  work  on  American  Crimi- 
nal Law,  which  issues  simultaneously  with  this  through 
the  press. 

F.  W. 

May  1,  1857. 

vii 


PREFACE. 


On  submitting  to  the  profession,  in  1846,  a  Treatise  on 
American  Criminal  Law,  my  first  design  was  to  annex  to  it 
a  Collection  of  Precedents  of  Indictments  and  Pleas  suited 
to  the  use  of  practitioners  throughout  the  Union.  The 
great  number  of  forms,  however,  which  the  varying  systems 
of  the  federal  and  state  courts  made  necessary,  and  the 
large  amount  of  notes  called  for,  both  by  the  newness  of  the 
material  and  by  the  increasing  intricacy  of  criminal  pleading, 
led  to  a  variation  from  my  original  plan.  The  forms  which 
are  now  presented  may  be  considered  under  three  classes : 
first,  those  which  have  been  directly  sustained  by  the  courts ; 
second,  those  which  have  been  prepared  by  eminent  pleaders, 
but  which  have  not  been  judicially  tested ;  and  third,  those 
which  have  been  drawn  from  the  English  books.  Those 
composing  the  first  class,  wherever  the  pleading  in  the  par- 
ticular case  is  not  set  out  in  the  report,  have  been  made  up 
by  recourse  to  the  records  of  the  court  in  which  the  trial  took 
place.  In  preparing  the  second.,  I  have  to  acknowledge  my 
indebtedness  to  the  printed  volume  of  Mr.  Daniel  Davis, 
for  many  years  solicitor-general  of  INIassachusetts,  and  to  a 
manuscript  collection,  begun  in  1778,  by  Mr.  Bradford, 
attorney-general  successively  of  Pennsylvania  and  of  the 
United  States,  and  continued  by  Mr.  J.  D.  Sergeant,  Mr. 
Jared  Ingersoll,  Mr.  Charles  Lee,  Mr.  IIawle,  Mr.  A.  J. 
Dallas,  and  Mr.  Hush,  who  were  either  his  contemporaries, 
or  his  immediate  successors,  in  the  state  or  federal  prosecu- 
tions. In  selecting  the  forms  which  fall  under  the  tliird 
head,  I  have  relied  chiefly  on  the  treatises  of  Mr.  Starkie, 

ix 


PREFACE. 

Mr.  Archbold,  and  Mr.  Dickinson,  introducing,  in  addition, 
a  series  of  indictments  which  have  been  sustained  by  the 
Enghsh  courts  since  the  date  of  those  pubHcations. 

In  the  first  book  is  given  a  general  form  of  indictment 
with  caption,  commencement,  and  conclusion ;  adapted  to 
the  federal  courts,  and  to  those  of  the  several  states ;  and  to 
each  averment  in  the  text  is  attached  a  note  incorporating 
the  doctrine  bearing  upon  it.  The  indictments  relating  to 
each  individual  offence  are  in  like  manner  preceded  by  a 
general  preliminary  form,  to  which  are  appended  notes 
divided  on  the  same  principle  of  analysis.  On  such  a  plan, 
the  duty  of  the  Editor  is  first  to  separate  the  authorities, 
English  and  American,  into  compartments  corresponding 
in  subject  matter  with  the  several  averments  in  the  indict- 
ment, and  then  to  connect  with  each  of  them,  in  the  order 
in  which  they  stand,  its  own  particular  portion  of  com- 
mentary. It  is  plain,  that  the  value  of  a  work  thus  pre- 
pared must  depend  upon  the  fidelity  with  whicli,  both  in 
text  and  note,  the  settled  law  is  observed ;  and  I  have 
thought  it  judicious,  therefore,  when  referring  to  the  Eng- 
lish learning,  to  depend  chiefly  on  the  expression  given  to 
it  by  the  recognized  English  commentators.  On  tliis  prin- 
ciple, I  have  placed  gTeat  reliance  on  the  very  elaborate 
and  lucid  notes  by  Mr.  Serjeant  Talfourd  to  Dickinson's 
Quarter  Sessions,  many  of  which  I  have  incorporated  at 
large,  and  which  may  be  safely  referred  to,  as  containing 
not  only  the  most  modern,  but  the  most  succinct  exposition 
of  the  English  crown  law  of  pleading.  I  should  be  doing 
great  injustice,  not  only  to  myself,  but  to  others  to  whose 
prompt  and  intelligent  kindness  I  am  under  the  strongest 
obligations,  did  I  withhold,  at  the  close  of  this  undertaking, 
my  thanks  to  the  many  professional  brethren,  both  here  and 
throughout  the  Union,  from  whom  I  have  recei^'ed  aid  during 
its  progress. 

PiiiLADELrniA,  Kovemher,  1848. 
X 


ANALYTICAL  TABLE. 


BOOK   I. 

GENERAL  FORM  OF  INDICTMENT. 
CHAPTER   I. 

CAPTION,    1. 

CHAPTER   II. 

GENERAL  FORM  OF  INDICTMENT  AT  COMMON  LAW,  2. 

CHAPTER   III. 

COMMENCEMENTS  AND   CONCLUSIONS  IN  THE   FEDERAL  AND  STATE 

COURTS. 

I.  Federal  Courts,  3. 

II.  State  Courts,  19. 

BOOK   II. 

CHAPTER   I. 

accessaries,  97. 

BOOK   III. 

OFFENCES  AGAINST  THE  PERSON. 

CHAPTER  I. 

homicide,  114. 

xi 


ANALYTICAL   TABLE. 
CHAPTER    II. 

KAPE,   186. 

CHAPTER   III. 

SODOMY,   191. 

CHAPTER   IV. 

MATHEJI,   192. 

CHAPTER    V. 

ABDUCTION KIDNAPPING,    200. 

CHAPTER   YI. 

ABORTION,  204. 

CHAPTER    VII. 

ASSAULTS,  213. 

BOOK    IV. 

OFFENCES  AGAINST  PROPERTY. 
CHAPTER    I. 

FOUGERY,  COINING,  UTTERING,  ETC.,  264. 

CHAPTER   II. 

BURGLARY,  3.57. 

CHAPTER    III. 

ARSON,    389. 

CHAPTER   lY. 

ROBBERY,  410. 

xii 


ANALYTICAL    TABLE. 
CHAPTER    V. 

LARCENY,  415. 

CHAPTER   VI. 

RECEIVING  STOLEN  GOODS,  450. 

CHAPTER  VII. 

EMBEZZLEMENT,    460. 

CHAPTER  VIII. 

MALICIOUS    MISCHIEF,  470. 

CHAPTER    IX. 

FORCIBLE  ENTRY  AND  DETAINER,  489. 

CHAPTER   X. 

fraud,  etc. 

Cheats  at  Common  Law,  499. 
False  Personation  of  Bail,  50G. 
Secreting  Goods,  etc.,  507. 
Fraudulent  Insolvency,  519. 
Violation  op  Factor  Law,  525. 
Obtaining  Goods  by  False  Pretences,  528. 

CHAPTER    XL 

destroying  a  vessel  at  sea,  etc.,  575. 

BOOK   V. 

OFFENCES  AGAINST  SOCIETY. 
CHAPTER  I. 

PERJURY,  577. 

CHAPTER    II. 

conspiracy,  G07. 

xiii 


ANALYTICAL   TABLE. 

CHAPTER  III. 

nuisance. 

Obstruction  to  Highways,  etc.,  675. 

Unwholesome  Smells,  etc.,  705. 

Disorderly  and  Gaming  Houses,  722. 

Profanation  of  Lord's  Day,  750. 

Selling  Unavholesome  Meat,  etc.,  759. 

Scandalous  Exhibitions  and  Indecent  Exposures,  765. 

Lewdness  and  Drunkenness,  774. 

Common  Scold,  Night  Walker,  Barratry,  779. 

Non-repairing  Eoads,  781. 

Violations  of  License  Laavs,  792. 

Offences  to  the  Dead,  821. 

CHAPTER   IV. 

riot,  affray,  tumultuous  conduct,  rescue,  prison  breach, 
resistance  to  officers. 

Riot,  846. 

Disturbance  of  Elections,  858. 

Disturbing  Religious  Meetings,  861. 

Going  Unlawfully  Armed,  866. 

Refusing  to  Quell  Riot,  870. 

Rescue,  etc.,  872. 

Assaults  on,  and  Resistance  to  Officers,  879. 

CHAPTER  V. 

compounding  felony,  895. 

CHAPTER   VI. 

misconduct  in  office,  etc. 

Against  Magistrates  and  Constables  for  Misconduct,  897. 
Against  Toll  Collectors,  910. 
Against  Innkeepers,  911. 
Against  Attorneys,  913. 
Against  Masters,  914. 
Against  Overseers,  916. 
Against  Juror  for  not  Serving,  917. 
xiv 


ANALYTICAL    TABLE. 

Refusals  to  Serve  in  Office,  918. 
Against  Jailor  for  Escape,  921. 
Against  Prisoner  for  Escape,  924. 
Against  Officers  of  Vessels,  G25. 

CHAPTER   VII. 

libel,  blasphemy,  and  threatening  letters. 

Libel,  939. 

Seditious  Words,  961. 
Blasphemy,  963. 
Obscenity,  968. 
Threatening  Letters,  972. 

CHAPTER  VI 1 1. 
offences  against  foreign  ministers,  976. 

CHAPTER    IX. 

BIGAMY,  ADULTERY,  FORNICATION,   984. 

CHAPTER  X. 

usurpation,  maintenance,  bribery,  etc. 

Usurpation,  1005. 

Forestalling,  1007. 

Holding  Vendue  Unlaavfully,  1010. 

Maintenance,  1011. 

Bribery,  1012. 

Embracery,  1022. 

Betting,  etc.,  1023. 

CHAPTER  XL 

challenging  to  fight,  1028. 

CHAPTER  XIL 

ATTEMPTS  AND  SOLICITATIONS  TO  COMMIT  OFFENCES,    1046. 

XV 


ANALYTICAL    TABLE. 
CHAPTER    XIII. 

REVOLT,  PIRACY,  AND    SLAVE  TRADE,   lOGl. 

CHAPTER  XIV. 

OFFENCES  AGAINST  POST-OFFICE  AND  REVENUE  LAWS,   1095. 

CHAPTER    XV. 

TREASON,  SEDITION,  AND  VIOLATION  OF  NEUTRALITY  LAWS,   1117. 

BOOK   VI. 
CHAPTER    I. 

PLEAS  AND  REPLICATIONS,   1138. 

CHAPTER    II. 

DEMURRERS,   llGl. 

xvi 


BOOK  I. 

GEN^EEAL  FOEM  OF  i:N'DICTME]SrT. 


CHAPTER  I. 

'    CAPTION. 
GENERAL  COMMENCEMENT  OF  CAPTION. 

(1)  State  of,  etc.  etc.  {Giving  state  and  county.)  At  (a) 
the  general  quarter  sessions  of  the  peace  {stating  style  of  couri),{b) 
holden  at  Washington  {stating  county  towii,  or  loherever  the  court 
is  holden)  in  and  for  the  county  aforesaid,(c)  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
forty ,(r?)  before  A.  B.  and  C.  D.,  esquires,  and  others  their  asso- 
ciates, justices  of  the  said  state,  assigned  to  keep  the  peace  of 
the  said  state,  and  also  to  hear  and  determine  divers  felonies, 
trespasses  and  other  misdemeanors,  in  the  said  county  com- 
mitted, by  the  oaths  (or  oaths  and  affirmations)  of  {naming 
the  grand  juror  s),{e)  good  and  lawful  men  of  the  county  afore- 
said,(/)  then  and  there  sworn  and  charged (^)  to  inquire  for  the 
said  state,  and  for  the  body  of  the  county  aforesaid,  it  is  pre- 
sented that,  etc.(A) 

(«)  The  caption  is  no  part  of  the  indictment.  1  East  P.  C.  113  ;  Fost.  2  ;  Ch. 
C.  L.  327  ;  1  Saund.  250  d,  n.  1  ;  1  Stark.  C.  P.  238  ;  R.  v.  March,  6  A.  &  E. 
236  ;  State  v.  Gary,  36  N.  H.  359  ;  State  v.  Gilbert,  13  Vt.  647  ;  State  v.  Thi- 
beau,  30  Vt.  100  ;  People  v.  Jewett,  3  Wend.  319  ;  People  v.  Bennett,  37  N.  Y. 
117;  State  t).  Price,  6  Halst.  203;  Berrian  v.  State,  2  Zab.  9;  State  v.  Smith,  2 
Barring.  532;  States.  Brickell,  1  Hawks,  354;  State  v.  Haddock,  2  Hawks, 
261  ;  Noles  r.  State,  24  Ala.  672.  See  Caldwell  o.  State,  3  Ba.xter,  429.  Its 
object  is  to  state  the  style  of  the  court,  the  time  and  place  of  its  meeting,  the 
time  and  place  where  the  indictment  was  found,  and  the  jurors  by  whom  it  was 
found  ;  and  these  particulars  it  must  set  forth  with  reasonable  certainty  for  the 
use  of  a  superior  or  appellate  court  to  which  it  may  be  removed.  U.  S.  v. 
Thompson,  6  McLean,  56  ;  State  v.  Conley,  39  Me.  78  ;  McClure  v.  State,  1 
Yerg.  206  ;  English  v.  State,  4  Tex.  125  ;  lieeves  v.  State,  20  Ala.  33.     Facts 

VOL.  I. — 1  1 


(1) 


CAPTION. 


essential  to  juvlsdiction  in  the  trial  eourt  must  in  this  way  be  spread  on  record. 
State  V.  Hunter,  Peck's  Tenn.  11.  IGG.  See  State  v.  Fields,  Ibid.  140  ;  State  u. 
Williams,  2  MeCord,  301. 

In  England,  the  caption  in  general  does  not  appear  until  the  i-eturn  to  a  writ 
of  certiorari,  or  a  writ  of  error,  yet,  in  cases  of  high  tr(>ason,  the  defendant  is 
entitled  to  a  coj^y  of  it  in  the  first  instance,  after  the  finding  of  the  indictment,  in 
order  that  he  may  be  acquainted  with  the  names  of  the  juroi-s  by  whom  it  was 
presented.  1  East  P.  C.  113;  Fost.  2;  Ch.  C.  L.  327.  As  it  forms  no  part  of 
the  indictment,  it  has  been  held  no  ground  for  arresting  judgment  that  the  indict- 
ment does  not  show,  in  its  caption,  that  it  was  taken  in  the  State  ;  for,  it  is 
said,  while  it  stood  on  the  records  of  the  court  below,  it  appeared  to  be  aii  in- 
dictment of  that  court,  and,  when  sent  to  the  Supreme  Court,  the  caption  of  the 
record,  of  which  it  is  a  part,  oilicially  certified,  renders  it  sufiiciently  certain. 
State  V.  Brickell,  1  Hawks,  354  ;  1  Saunders,  250  d,  n.  1.  If  wholly  omitted  in 
the  court  belo-\?,  it  is  said  the  indictment  may  nevertheless  be  sufficient,  as  the 
minute  of  the  clerk  upon  the  bill,  at  the  time  of  the  presentment,  and  the  gene- 
ral records  of  the  term,  will  supply  any  defect  in  such  prel'ace.  State  i'.  Gilbert, 
13  Vt.  G4  7  ;  State  v.  Smith,  2  ilarring.  532. 

In  North  Carolina,  it  was  held  that  a  caption  to  an  Indictment  is  only  neces- 
sary where  the  court  acts  under  a  special  commission.  State  v.  Wasden,  N.  C. 
Term,  1()3. 

Giving  only  the  initials  of  the  first  names  of  the  grand  jurors  is  no  defect. 
Stone  ?'."  State,  30  Ind.  115. 

In  Massachusetts  practice,  it  seems,  each  indictment  is  framed  with  its  own 
special  caption,  instead  of  leaving  the  caption  to  be  made  up,  as  is  the  usual  and 
better  course,  from  the  records  of  the  court,  by  the  clerk,  when  the  record  is 
taken  into  another  court.  Yet  even  in  INIassachusetts,  this  "caption,"  if  it  is  so 
to  be  called,  is  purely  formal,  and  is  amendable.  See  Com.  v.  Edwards,  4  Gray, 
1.  See  also  State  r.  Conley,  39  Me.  78.  The  allegation  "at  the  court"  etc. 
implies  that  the  grand  jury  were  sworn  in  open  court. 

(/;)  When  the  indictment  is  returned  from  an  inferior  court,  in  obedience  to  a 
writ  o^  certiorari,  the  statement  of  the  previous  proceedings  sent  with  it  is  termed 
the  schedule,  and  from  this  instrument  the  caption  is  extracted.  1  Saund.  309. 
The  style  should  properly  represent  the  court,  so  as  to  show  it  to  have  jurisdic- 
tion, this  being  the  chief  object  of  the  caption.  Dean  v.  State,  Mart.  &  Yerg. 
127  ;  State  v.  Lisle,  5  Halst.'  348  ;  2  Hale,  1G5  ;  2  Hawk.  c.  25,  s.  IIC,  117,  118, 
119,  120;  Burn's  Just.  29th  ed..  Indict,  ix.  When  taken  from  the  schedule  it 
is  entered  upon  the  record,  and  prefixed  to  the  indictment.  2  Hale,  1G5  ;  Bac. 
Ab.  Indictment,  J.;  Burn,  J.,  Indictment,  ix.  ;  Williams,  J.,  Indictment,  iv. 
The  object  being  to  show  that  the  inferior  court  had  jurisdiction,  a  certainty  in 
that  respect  is  requisite.  2  Sessions  Cases,  316  ;  1  Ch.  C.  L.  327.  See  State  o. 
Wasden,  2  Taylor  N.  C.  1G3  ;  State  v.  Haddock,  2  Hawks,  461  ;  2  Hale,  165  ; 
2  Hawk.  c.  25,  ss.  16,  17,  118,  119,  120;  Biu'n's  Justice,  29th  ed.  by  Chitty  & 
Bears,  Indict,  ix.  ;  Dean  v.  State,  Mart.  &  Yerg.  127  ;  State  v.  Zule,  5  Ha'lst. 
348.  But  a  formal  statement  in  the  indictment  that  it  was  found  by  the  autho- 
rity of  the  State  is  not  necessary,  if  it  appear,  from  the  record,  that  the  prosecu- 
tion was  in  the  name  of  the  State.     Greeson  v.  State,  5  Howard's  Miss.  33. 

(c)  Next  to  the  statement  of  the  court  follows  the  name  of  the  place  and 
county  where  it  was  holden,  and  which  must  always  be  inserted  ;  Dyer,  69,  A.  ; 
Cro.  Jac.  276  ;  2  Hale,  166  ;  2  Hawk.  c.  25,  s.  128  ;  Bacon  Ab.  Indictment,  i.  ; 
and  though  it  maybe  enough,  after  naming  a  place,  to  refer  to  "the  county 
aforesaid,"  yet,  unless  there  be  such  ex|)ress  reference  to  the  county  in  the  mar- 
gin, or  it  be  repeated  in  the  body  of  the  caption,  it  will  be  insufficient.  2  Hale, 
180;  3  P.  Wms.  439;  1  Saund.'soS,  n.  ;  Cro.  Eliz..  137,  606,  738;  U.  S.  v. 
Wood,  2  Wheel.  C.  C.  336.  This  is  necessary  in  order  to  show  that  the  place 
is  within  the  limits  of  the  jurisdiction.  R.  v.  Stanbury,  L.  &  C.  128.  As  to 
venue  see  Wh.  Cr.  PI.  &  Pr.  §  139.  Hence,  whether  the  caption  wholly  omit 
the  place,  or  do  not  state  it  with  sufficient  certainty,  the  proceedings  will  be  alike 

2 


GENERAL   FORM.  (1) 

invalid,  though  amendable.  Cro.  Jac.  27G  ;  2  Hale,  166  ;  2  Hawk.c.  25,  s.  128  ; 
Bac.  Ab.  Indictment,  i.  If,  therefore,  the  caption  state  the  inquisition  to  be 
taken  only  at  the  town,  ■without  adding  '■^  the  county  aforesaid,"  the  omission 
will  vitiate  unless  amended.  Cro.  Eliz.  137,  COB,  738,  751;  2  Hale,  1G6  ;  2 
Hawk.  c.  25,  s.  128;  Bac.  Ab.  Indictment,  i.  ;  AVilliams,  J.,  Indictment,  iv.  ; 
U.  S.  V.  Wood,  2  Wheel.  C.  C.  336.     See  Teft  v.  Com.,  8  Leigh,  721. 

The  omission  of  "  North  Carolina,"  in  an  indictment  found  in  a  court  in  that 
state,  where  the  name  of  the  county  is  inserted  in  the  margin  or  body  of  the 
indictment,  is  not  a  cause  for  arresting  the  judgment.  State  v.  Lane,  4  Ired. 
113.  An  indictment  in  the  same  state,  containing  in  its  caption  a  statement 
of  the  term  in  these  words:  "Fall  Term,  1822,"  and,  in  the  body  of  the  indict- 
ment, charging  the  time  of  the  offence  in  these  words  :  "  On  the  first  day  of  Au- 
gust in  the  present  year,"  was  held  good  ;  and  it  was  said  that  there  was  no 
necessity  for  stating  anytime  in  the  caption  of  an  indictment  found  in  the  county 
or  supreme  courts.     State  v.  Haddock,  2  Hawks,  461. 

In  ]\Iassachusetts,  an  indictment  with  this  caption  :  "  Commonwealth  of  Massa- 
chusetts, Essex,  to  wit:  At  the  Court  of  Common  Pleas,  begun  and  holden  at 
Salem,  within  and  for  the  county  of  Essex,"  on  a  certain  day,  sufficiently  shows 
that  it  was  found  at  a  court  held  in  this  Commonwealth.  Com.  v.  Fisher,  7  Gray, 
492.  See  also  Jeffries  v.  Com.,  12  Allen,  145  ;  Com.  v.  Mullen,  13  Allen,  551. 
In  the  same  state,  an  indictment  which  purports  by  its  caption  to  have  been 
found  at  a  court  of  common  pleas  for  the  county  of  Hampshire,  and  in  the  body 
of  which  "the  jurors  of  said  commonwealth  on  their  oath  present,"  sufficiently 
shows  that  it  was  returned  by  the  grand  jury  for  the  county  of  Hampshire.  Com. 
V.  Edwards,  4  Gray,  1  ;  Wh.  Cr.  PL  &  Pr.  |  134.  And  in  Maine,  where 
the  record  commenced:  "  State  of  Maine,  Cumberland,  ss.  At  the  Supreme 
Court  begun  and  holden  at  Portland,  within  the  county  of  Cumberland,"  it  was 
held  that  this  was  sufficient  to  show  that  the  court  at  which  the  indictment  was 
found  was  held  for  that  county  in  the  State  of  Maine.  State  c.  Conley,  3!) 
Me.  78;  Wh.  Cr.  PI.  &  Pr.  ?  139.  I" or  other  rulings  on  captions  see  Davis 
V.  State,  19  Oh.  St.  270;  Lovell  y.  State,  45  Ind.  550;  Woodsides  v.  State,  2 
How.  Miss.  655;   Reeves  v.  State,  20  Ala.  33. 

A  party  was  indicted  for  murder  in  the  Circuit  Court  for  Carroll  County,  was 
arraigned,  pleaded  not  guilty,  and  was  put  upon  his  trial ;  the  jury  failing  to 
agree  were  discharged,  and  at  the  suggestion  of  the  prisoner,  the  record  of  pi"0- 
ceedings  Avas  transmitted  to  the  Circuit  Court  for  Washington  County.  The 
transcript  of  the  record  so  transmitted  stated  that  the  grand  jurors  who  Ibund  the 
presentment  were  "good  and  lawful  racrx.  oi'  Baltimore  County."  All  the  pro- 
ceedings prior  and  subsequent  to  this  statement  were  properly  recorded  as  of 
Carroll  County.  It  was  ruled  that  this  did  not  vitiate  the  indictment.  Davis  v. 
State,  39  Md.  353. 

{d)  The  term  of  court  need  not  be  set  out.     State  v.  Haddock,  2  Hawks,  462. 

(e)  In  England  it  was  once  held  that  the  indictment  must,  in  all  cases,  be 
shoAvn  to  have  been  taken  upon  oath,  and  if  this  allegation  be  omitted,  the  cap- 
tion cannot  be  supported.  2  Keb.  67G;  1  Keb.  329;  1  Sid.  140;  3  ]\Iod.  202; 
2  Hale,  167  ;  2  HaAvk.  c.  25,  s.  126  ;  Bac.  Ab.  Indictment,  i. ;  Burn,  J.,  Indict- 
ment, ix.  ;  Williams,  J.,  Indictment,  iv.  It  is  otherwise,  however,  under  statutes 
permitting  affirmations.  And  an  indictment  ])urporting  to  be  i)resented  by  the 
grand  jurors  "upon  their  oath  and  affirmation"  n<'ed  not  state  the  reasons  why 
any  of  the  jurors  affirmed  instead  of  being  sworn.  Mulcahy  i".  R.,  3  L.  R. 
H.  L.  Cas.  306;  Com.  v.  Brady,  7  Gray,  320;  Cora.  v.  Fisher,  7  Gray,  492, 
cited  infra.     See,  however.  State  v.  Harris,  2  Halst.  361. 

Whether  "oath"  or  "  oatlis"  is  averred  is  immaterial.  Com.  v.  Sholes,  11 
Allen,  554;   State  v.  Dayton,  3  Zab.  49  ;   Wh.  Cr.  PI.  &  Pr.  §  277. 

It  must  appear  at  common  law  on  the  face  of  the  record,  that  the  bill  was  found 
by  at  least  twelve  jurors,  or  it  will  be  insufficient.  Cro.  Eliz.  654  ;  2  Hale, 
167;  2  Hawk.  c.  25,  ss.  16,  126;  1  Saund.  248,  n.  1;  Andr.  230;  Bac. 
Ab.  Indictment,  i.  ;  Burn,  J.,  Indictment,   ix.  ;   Williams,  J.,   Indictment,  iv. 

3 


(1)  CAPTION. 

"Where  the  statute  requires  more  than  twelve,  the  requisite  number  must  be 
aveiTed.  Fitzgerald  v.  State,  4  Wis.  395.  Thej'  are  usually  described,  also, 
as  "good  and  lawful  men,"  which  is  suflioient  (2  Hale,  167  ;  Cro.  Eliz.  731; 
1  Keb.  629;  Cro.  Jac.  635;  State  v.  Price,  6  Halst.  203;  see  State  v.  Jones, 
4  Halst.  357)  ;  but  this  is  not  in  England  absolutely  essential,  especially  when  the 
indictment  is  found  in  a  superior  court,  because  all  men  shall  be  so  regarded  until 
the  contrary  appear.  2  Keb.  366;  2  Hawk.  c.  25,  ss.  16,_  126;  Bac.  Ab.  In- 
dictment, i.';  Burn,  J.,  Indictment,  ix.  ;  Williams,  J.,  Indictment,  iv.  ;  Stark, 
C.  P.  236-7  ;  R.  V.  Buttertield,  2  M.  &  R.  522.  See  Jerry  v.  State,  1  Blackf. 
395;  Beauchamp  v.  State,  6  Blackf.  299;  Bonds  r.  State,  Mart.  &  Yerg.  143; 
State  V.  Glasgow,  Conf.  38;  State  >\  Yancy,  1  Tread.  23  7.  The  caption  then 
must  state  that  they  are  "  of  the  county  aforesaid  "  or  other  vill  or  precinct  for 
which  the  court  had  jurisdiction  to  iiupiire  :  and,  if  these  words  are  omitted,  tlie 
whole  will  be  vicious.  Tipton  i;.  State,  Peck's  R.  S  ;  Cornwell  v.  State,  Mart. 
&  Yerg.  147;  Cro.  Eliz.  667;  2  Keb.  160;  2  Hale,  167;  2  Hawk.  c.  25,  ss. 
16,  126;  Bac.  Ab.  Indictment,  i.  ;  Burn,  J.,  Indictment,  ix.  ;  Williams,  J., 
Indictment,  iv.  The  caption,  by  implication  at  least,  must  show  that  the  grand 
jury  were  of  the  county  where  the  indictment  was  taken.  Tipton  v.  State,  Peck's 
Term.  R.  308;  per  Haywood  and  Beck,  f],].,  contra,  White,  J.  ;  Woodsides  o. 
State,  2  How.  (Miss.)  655.  It  is  not,  under  the  present  practice,  requisite  to 
give  the  names  of  the  grand  jurors.  R.  v.  Aylett,  6  A.  &  E.  247  ;  R.  v.  Marsh, 
Ibid.  236.  If  the  names  are  given,  a  variance  as  to  one  of  them  is  not  fatal. 
State  V.  Norton,  3  Zab.  33  ;  State  v.  Dayton.  Ibid.  49.  How  far  specification  is 
necessary,  see  Wh.  Cr.  PI.  &  Pr.  §§  345  ct  seq. 

Where  it  appeared  by  the  record  that  a  foreman  was  appointed,  and  the  indict- 
ment was  returned,  signed  by  him,  and  the  caption  stated  that  the  grand  jury 
returned  the  bill  into  court  by  their  foreman,  it  was  lield  sufficient  evidence  that 
the  bill  was  returned  by  the  authority  of  the  <rraiid  jurv.  Greeson  v.  State,  5 
How.  Miss.  R.  33.      See  Wh.  Cr.  PI."  &  Pr.  ?  368. 

As  has  been  seen,  where  the  caption  avers  the  affirmation  of  some  of  the  grand 
jurors,  it  is  said,  in  New  Jersey,  that  it  must  appear  tliat  they  were  persons  enti- 
tled by  law  to  take  affirmations  in  lieu  of  oaths.  State  c.  Harris,  2  Halsted,  361  ; 
but  such  is  not  the  usual  practice  ;  the  indictment  going  no  iurther,  in  most 
states,  tlian  to  aver  the  fact  of  its  being  made  on  tlie  oaths  and  affirmations  of 
the  grand  jurors.     Com.  v.  Fisher,  7  Gray,  492. 

If  the  caption  omit  to  state  that  the  grand  jury  Avere  sworn,  it  will  be  presumed 
they  were  sworn;  at  least  the  recital  in  the  record  that  "the  grand  jury  were 
elected,  empanelled,  sworn,  and  charged,"  will  be  sufficient.  McClure  v.  State, 
1  Yerg.  206,  per  Catron,  J. 

In  North  Carolina,  the  courts  have  gone  so  far  as  to  pronounce  no  necessity  to 
exist  for  a  ea})tion  at  all,  except  wiiere  tlie  court  acts  under  a  special  commission. 
State  V.  Brickell,  1  Hawks,  354;  State  r.  Haddock,  2  Hawks.  462;  see  1  Saun- 
ders, 250,  d,  n.  i.  Where  it  is  wholly  omitted  in  the  court  below,  it  may  be  sup- 
plied on  error  by  the  minute  of  the  clerk  on  the  bill  at  the  time  of  presentment, 
and  the  general  record  of  the  term.  State  v.  Gilbert,  13  Vt.  647  ;  State  v. 
Murphy,  9  Port.  486  ;  State  r.  Smith,  2  Harring.  532  ;  Kirkpatrick  v.  State,  6 
Miss.  471;  State  r.  Thompson,  Wright's  R.  617;  State  r.  Rose,  1  Ala.  29. 
In  fact,  in  most  of  the  States  it  is  now  rarely  tacked  on,  except  in  error.  In 
Pennsylvania,  Penn.  v.  Bell,  Add.  156  ;  in  South  Carolina,  State  v.  Williams,  2 
jNPCord,  301  ;  Vandyke  v.  ]Jail,  1  Ball.  65  ;  in  Indiana,  Moody  i'.  State,  7 
Blackford,  424;  and  in  New  Jersey,  State  v.  Jones,  4  Halst  457,  it  can  be 
amended  when  in  the  court  below,  by  reference  to  the  record  of  the  term,  or 
when  in  error,  by  proper  evidence  of  the  facts.  State  v.  Norton,  3  Zabr.  33. 
That  it  is  generally  open  to  auaendment,  see  last  note  to  this  chapter. 

A  caption,  "  Commonwealth  of  Massachusetts,  Essex,  to  wit :  At  the  Court 
of  Common  Pleas,  begun  and  holden  at  Salem,  within  and  for  the  county  of 
Essex,"  etc.,  sufficiently  shows  that  the  indictment  was  Ibund  in  Massachusetts. 

4 


GENERAL    FORM.  (1) 

Com.  V.  Fisher,  7  Gray,  492.  See  also  Com.  v.  Edwards,  4  Gray,  1  ;  State  v. 
Conly,  39  Me.  78. 

(/)  The  jury  must  appear  to  be  of  the  "county  aforesaid"  (Tipton  v.  State, 
Peck's  li.  8;  Cornell  v.  State,  Mart.  &  Yerg.  14  7);  thougli  the  allejration, 
"  empanelled  and  sworn  in  and  for  the  county  of  Wilkinson  and  State  of  Missis- 
sippi," may  supply  its  place.     Woodsides  v.  State,  2  How.  Miss.  R..  G5.5. 

In  New  Jersey,  where  the  cajjtion  states  the  finding  to  be  on  the  oath  and 
affinnatiomt  of  the  grand  jury,  it  must  appear  that  the  affirming  jurors  were 
persons  entitled  by  law  to  make    aflirmations  instead  of  oaths.      State  v.  Harris, 

2  Halst.  45  7.  This  particularity  does  not  seem  elsewhere  to  have  been  held 
necessary  ;  see  Archbold's  C.  P.  5th  Am.  ed.  34  ;   Com.  v.  Brady,  7  Grav,  320. 

(g)  The  omission  of  the  allegation  "then  and  there  sworn  and  charged,"  in 
New  York,  has  been  held  fatal  (People  v.  Guernsey,  3  Johns.  265)  ;  though  in 
Mississippi,  "then  and  there"  are  not  considered  indispensable  (Woodsitles  v. 
State,  2  How.  Miss.  R.  655)  ;  and  they  do  not  appear  in  the  precedent  given  by 
Mr.  Archbold.  Archbold's  C.  P.  5th  Am.  ed.  34.  As  appears  in  Beauchamp 
V.  State,  8  Blackf.  304,  the  omission  in  Indiana  is  considered  no  error. 

(h)    See,  as  to  this  form  genei-ally,  2  Hale,  166;  R.  r.  Fearnly,  1  Leach,  425. 

Defects  may  be  amended.  Defects  in  the  caption  of  the  indictment,  as  not  nam- 
ing the  judges,  the  jurors,  and  the  county,  which  would  be  fatal  if  the  indictment 
were  removed  into  a  superior  court,  may  be  supplied  in  the  court  in  which  it  is 
taken,  by  reference  to  other  records  there.  Faulkner's  case,  1  Saund.  249  ;  R. 
V.  Davis,  1  C.  &  P.  470;  Broome  v.  R.,  12  Q.  B.  838  ;  U.  S.  v.  Thompson,  6 
McLean,  156;  State  v.  Brady,  14  Vt.  353;  Com.  v.  Mullen,  13  Allen,  551; 
Com.  V.  Hines,  101  Mass.  33  ;  Dawson  v.  People,  25  N.  Y.  399;  Pennsvlvania 
V.  Bell,  Add.  173;  Com.  v.  Bechtell,  1  Am.  L.  J.  414;  Brown  v.  Com.,  78 
Penn.  St.  122;  Mackey  v.  State,  3  Oh.  St.  362;  State  w.  Creight,  1  Brev.  169; 
State  V.  Murphy,  9  Port.  487;  Reeves  )'.  State,  20  Ala.  33^  Kirk  c.  State,  6 
Mo.  469  ;  State  Y-.  Freeman,  21  Mo.  481  ;  Cornelius  v.  State,  7  Eng.  782;  Allen 
V.  State,  5  Wis.  329.  As  to  Massachusetts  practice  see  Com.  v.  Gee,  6  Cush. 
174;  Com.  v.  Stone,  3  Gray,  453  ;  Com.  v.  Cullon,  11  Gray,  1.  As  to  particu- 
larity reipired  in  Indiana  see  State  v.  Connor,  5  Blackf.  325.  As  to  Wisconsin 
see  Fitzgerald  v.  State,  4  Wis.  395  ;  and  see  cases  cited  Wh.  Cr.  PI.  &  Pr.  §  91. 
And  it  is  also  held  that  the  caption  may  be  amended  In  tlie  Supreme  Court,  on  pro- 
per evidence  of  the  facts  ;  or  the  certiorari  may  be  returned  to  the  court  below, 
and  the  amendment  made  there.     State  v.  Jones,  4  Halst.  357  ;   State  v.  Norton, 

3  Zabr.  33  ;  State  v.  Williams,  2  McCord,  301  ;  Vandyke  v.  Dare,  1  Bailey,  65. 
See  Wh.  Cr.  PL  &  Pr.  §  368. 

It  is  ordinarily  sufficient  for  the  commencement  to  state  that  the  grand  jurors 
of  the  State  or  Commonwealth,  inquiring  for  the  particular  county  or  city,  as  the 
case  may  be,  on  their  oaths  or  athrmations  respectively,  find  the  special  facts 
making  up  the  charge.  The  commencement  of  an  indictment  in  these  words, 
"the  grand  jurors  for  the  people  of  the  State  of  Vermont,  upon  tlieir  oath,  pre- 
sent," etc.,  is  sufficient,  on  motion  in  arrest  of  judgment.  State  r.  Nixon,  18 
Vt.  70.  So  when  "oaths"  and  not  "oath"  is  used.  Com.  t'.  Sholes,  13  Allen, 
554  ;   State  v.  Dayton,  2  Zabr.  49. 


(1) 


CArnoN. 


FORMS  OF  CAPTIONS. 

Circuit  Court  of  the  United  States  of  America  for  the  Southern  District  of  New 
York  in  the  Second  Circuit. 

At  a  Stated  Torm  of  the  Circuit  Court  of  the  United  States  of  America 
for  the  Southern  District  of  New  York,  in  the  Second  Circuit,  begun 
and  held  at  the  City  of  New  York,  within  and  for  the  circuit  and  district 
aforesaid,  on  the  of  in  the  year  of  our  Lord  one  tiiousand 

eight  hundred  and 

(Also)  at  a  Special  Term,  etc. 

At  an  additional  sessions  of  the  Circuit  Court  of  the  United  States  of 
America  for  tlie  Southern  District  of  New  York,  in  the  Second  Circuit, 
begun  and  held  at  the  City  of  New  York,  Avithin  and  for  the  circuit  and 
district  albresaid,  on  the  of  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and 


C^ 


^At  a  Stated  Term  of  the  Circuit  Court  of  the  United  States  of  America 
for  the  Southern  District  of  New  York,  in  the  Second  Circuit,  begun 
and  held  at  tlie  City  of  New  York,  within  and  for  the  circuit  and  district 
aforesaid,  on  the  day  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  and  continued  by  adjournment  (or  adjourn- 

ments) to  the  day  of  in  the  year  last  aforesaid. 


District  Court  of  the  United  States  of  America  for  the  Southern  District  of  Net 

York: 


At  a  Stated  Term  of  the  District  Court  of  the  United  States  of  America 
for  the   Southern  District  of  New  York,  begun  and  held  at  the  City  of 
New  York,  within  and  for  the  district  aforesaid,  on  the  first  Tuesday  of 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

At  a  Special  Term,  etc. 

At  a  Stated  Term  of  the  District  Court  of  the  United  States  of  America 
for  the  Southern  District  of  New  York,  begun  and  held  at  the  City  of 
New  York,  within  and  for  the  district  aforesaid,  on  the  first  Tuesday  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
and  continued  by  adjournment  (or  adjournments)  to  the  day  of 

in  the  year  last  aforesaid. 

State  of  Nexo  Jersey.,  Sussex  County,  ss. 

Be  it  remembered.  That  at  a  Court  of  Oyer  and  Terminer  and  General  Gaol 
Delivery,  holden  at  Newton,  in  and  for  said  County  of  Sussex,  on  the  fourth 
Tuesday  in  May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
twenty-seven,  before  the  Honorable  Gabriel  H.  Ford,  Esq.,  one  of  the  justices 
of  the  Supreme  Court  of  Judicature  of  the  State  of  New  Jersey,  and  John 
Gustin,  Joseph  Y.  Miller,  Walter  L.  Shee,  Aaron  ILizen,  and  others,  their  fel- 
lows, judges  of  the  Inferior  Court  of  Common  Pleas  in  and  for  the  said  county, 
according  to  the  form  of  the  statute  in  such  cases  made  and  provided,  by  the 
oaths  of  Elijah  Emitt,  Absalom  Dunning,  John  Lavton,  Nathaniel  Vanauken, 
Isaac  Bedefl,  Philip  Smitli,  Philip  Wyker,  Thomas  A.  Dildine,  Thomas  B. 
Egl)ert,  Joseph  Greer,  William  D.  Johnson,  Abraham  Dunning,  Andrew  Wil- 
son. David  Cunipton,  Lewis  Shuman,  Nicholas  J.  Cox,  John  Lennlngton,  Zeuas 
Hurd,  and  the  solemn  alRrmatlon  of  William  Green,  who  alleges  himself  to  be 
oonsclentiously  scrupulous  of  taking  an  oath,  good  and  lawful  men  of  the  said 
county,  sworn,  affirmed,  and  charged  to  Inquire  for  the  State,  In  ;ind  for  the  said 
bodv  of  the  said  Countv  of  Sussex,  it  is  presented  in  manner  and  form  following, 

6 


GENERAL   FORM.  (1) 

that  is  to  say  :  Sussex  County,  ss.  The  jurors  of  the  State  of  New  Jersey,  for 
the  body  of  the  County  of  Sussex,  upon  their  oaths  and  affirmation,  AVilliara 
Green,  one  of  the  said  jurors,  bein^f  the  only  person  wlio  affirmed,  on  the  said 
jury,  alleging  himself  to  be  conscientiously  scrupulous  of  taking  an  oath,  present 
that  Zachariah  Price,  late  of  the  township  of  Vernon,  in  the  County  of  Sussex 
aforesaid,  not  having  the  fear  of  God  before  his  eyes,  but  being  moved  and  se- 
duced by  the  instigation  of  the  devil,  on  the  twenty-fifth  day  of  March,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  twenty-seven,  witli  force  and 
arms,  etc.,  at  the  township  aforesaid,  in  the  county  aforesaid,  and  within  the 
jurisdiction  of  this  court,  one  barn  of  the  property  of  one  Nicholas  Ryerson,  not 
parcel  of  the  dwelling-house  of  the  said  Nicholas  Ryerson  there  situate,  wilfully 
and  maliciously  did  burn  and  cause  to  be  burned,  to  the  great  damage  of  the  said 
Nicholas  Ryerson,  to  the  evil  example  of  all  others  in  the  like  case  offending, 
contrary  to  the  form  of  the  statute  in  such  case  made  and  provided,  against  the 
peace  of  this  State,  the  government  and  dignity  of  the  same.  And  afterwards, 
that  is  to  say,  at  the  same  Court  of  Oyer  and  Terminer  and  General  Gaol 
Delivery,  holden  at  Newton  aforesaid,  in  the  county  aforesaid,  on  ^Monday  the 
twenty-eighth  day  of  May,  in  the  year  last  aforesaid,  before  the  said  Honoi'able 
Gabriel  H.  Ford,  Esq.,  justice  of  the  Supreme  Court  of  Judicature,  and  John 
Gustin,  Joseph  P.  jMiller,  "Walter  L.  Shee,  Aaron  Hazen,  and  others  their  fel- 
lows, judges  of  the  Inferior  Court  of  Common  Pleas  in  and  for  the  said  county, 
cometh  the  said  Zachariah  Price,  in  his  proper  person  according  to  the  condi- 
tion of  the  recognizance  by  himself,  and  his  pledges  in  that  behalf  heretofore 
made  and  now  here,  touching  the  premises  in  the  said  indictment  above  speci- 
fied and  charged  upon  him,  being  asked  in  what  manner  he  will  accpiit  himself 
thereof,  he  says  he  is  not  guiltj-  thereof,  and  of  this  he  puts  himself  upon  the 
county  ;  and  the  said  Alpheus  Gustin,  Esq.,  who  prosecutes  for  the  State  in  this 
behalf,  does  likewise  the  same  ;  wherefore  let  a  jury  thereupon  come,  to  wit,  on 
Monday  the  twenty-eighth  day  of  May,  in  the  year  of  our  Lord  eighteen  hun- 
dred and  twenty-seven,  and  as  yet  of  the  said  term  of  May,  before  the  said  the 
Honorable  Gabriel  H.  Ford,  Esq.,  one  of  the  justices  of  the  Supreme  Coart  of 
Judicature,  and  John  Gustin,  Joseph  Y.  ^Miller,  Walter  L.  Shee,  and  Aaron 
Hazen,  Esqrs.,  and  others  their  fellows,  judges  of  the  Inferior  Court  of  Common 
Pleas  in  and  for  the  said  county,  of  good  and  lawful  men  of  the  Comity  of  Sus- 
sex aforesaid,  by  whom  the  truth  of  the  matter  may  be  the  better  known,  and 
who  are  not  of  kin  to  the  said  Zachariah  Price,  to  recognize  upon  their  oaths, 
whether  the  said  Zachariah  Price  be  guilty  of  the  misdemeanor  in  tlie  indict- 
ment aforesaid  above  specified,  or  not  guilty,  because  as  well  the  said  Alpheus 
Gustin,  Esc{, ,  who  prosecutes  for  the  State  in  this  behalf,  as  the  said  Zachariah 
Price,  have  put  themselves  upon  the  said  jury,  and  the  jurors  of  the  said  jury, 
by  Benjamin  Hamilton,  Esq.,  high  sheriff  of  the  said  County  of  Sussex,  for  this 
purpose  empanelled  and  returned,  agreeably  to  the  statute  in  such  case  made 
and  provided,  to  wit,  John  Cummins,  Matthew  Ayres,  Lewis  Havens,  Sylvenus 
Adams,  William  Milchnm,  Jacob  jMiller,  Nicholas  Ackerson,  Gabriel  Post,  Lewis 
Peters,  Joseph  Predmon,  Lewis  Dennis,  and  Samuel  H.  Hibler,  who  being 
elected,  tried,  and  sworn  and  affu-med,  the  said  Lewis  Dennis,  one  of  the  said 
jurors,  being  the  only  person  who  was  affirmed  on  the  said  jury,  alleging  him- 
self to  be  conscientiously  scrupulous  of  taking  an  oath  to  speak  the  truth  of  and 
concerning  the  premises,  upon  their  oaths  and  atlirmation,  say  that  the  said 
Zachariah  Price  is  guilty  of  the  misdemeanor  aforesaid  on  him  above  charged 
in  the  form  aforesaid,  and  as  by  the  indictment  aforesaid  is  above  su])pnscd 
against  him  ;  and  upon  this  it  is  forthwith  demanded  of  the  said  Zaciiariah 
Price  if  he  hath  or  knowcth  of  anything  to  say  wherefore  the  said  justice  and 
iudges,  and  their  fellows  as  aforesaid  here,  ought  not  iqion  the  ])n'mises  and 
verdict  aforesaid,  to  proceed  to  judgment  against  him,  who  nothing  t'urther  saith, 
unless  as  he  before  had  said;  wliereupou  all  and  singular  the  i)remises  being 
seen,  and  by  the  said  justice  and  judges  and  their  fellows  as  aforesaid,  here 
fully  understood,   it  is  considered  by  the  court  here  that  the  said   Zachai-iah 

7 


(1) 


CAPTION. 


Price  be  confined  and  imprisoned  at  liard  labor  in  the  State's  prison  for  the  term 
of  ten  years. 

The  caption  to  the  panel  of  the  grand  jury  was  as  follows  :  — 
List  of  the  names  of  persons  summoned  to  attend  at  the  Court  of  Oyer  and 
Terminer  and  General  Gaol  Delivery,  to  be  holden  at  Newton,  in  and  for  the 
County  of  Sussex  in  the  State  of  New  Jersey,  in  the  term  of  May,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  twenty-seven,  pursuant  to  the 
statute  in  such  case  made  and  provided,  by  me,  viz.  A.  B.,  C.  D.,  etc.  (naming 
the  jurors). 

Subscribed.     B.  H.,  Sherif.— (State  v.  Price,  6  Halst.  204    205,  206.) 

City  and  Count)/  of  Nero  York,  ss. 

Be  it  remembered,  That  at  a  Court  of  General  Sessions  of  the  Peace,  holden 
at  the  Halls  of  Justice  of  the  City  of  New  York,  in  and  for  the  City  and  County 
of  New  York,  on  the  first  Monday  of  in  the  year  of  our  Lord  one  thousand 

eight  hundred   and  forty-  before  Esquire  of  the  said  City   of 

New   York,  and  two  of  the  aldermen  of  the  said  city,  judges  of  the  said 

court,  assigned  to  keep  the  peace  of  the  said  City  and  County  of  New  York, 
and  to  inquire,  by  the  oaths  of  good  and  lawful  men  of  the  said  county,  of  all 
crimes  and  misdemeanors  committed  or  triable  in  the  said  county,  and  to  hear, 
determine,  and  punish  according  to  law,  all  crimes  and  misdemeanors  in  the 
said  city  and  county,  done  and  committed,  not  punishable  Avith  death. 
By  the  oath  of  foreman  (here  setting  forth  grand  jurors). 

It  was  presented  as  follows,  that  is  to  say.  City  and  County  of  New  York,  ss : 
The  jurors  of  the  people  of  the  State  of  New  York,  in  and  for  the  body  of  the 
City  and  County  of  New  York,  upon  their  oath  present,  that,  etc. 

State  of  Vermont,  Windsor  County,  ss. 

Be  it  remembered.  That  at  the  county  court  begun  and  holden  at  Woodstock, 
within  and  for  the  County  of  Windsor,  on  the  first  Tuesday  of  November,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  forty-five  :  the  grand 
jurors  within  and  for  the  body  of  the  County  of  AVindsor  aforesaid,  now  here  in 
court  duly  emj)anelled  and  sworn,  upon  their  oath  present,  that,  etc. — (See  State 
V.  Nixon,  18  Vt.  70;  State  v.  Munger,  15  Vt.  290.) 


GENERAL    FRAME    OF    INDICTMENT.  (2) 


CHAPTER  11. 

GENERAL  FRAME  OF  INDICTMENT  AT  COMMON  LAAV. 

(2)  Skeleton  of  indictment  generally.  , 

The  grand  jurors  for,  etc.,(rt)  inquiring  for,  etc.,(/>)  upon  tlieir 
oaths  (or  oaths  and  afBrmations),(e)  do  present,  that  A.  B.,(c/)  hite 
of  the  said  county ,(£>)  yeonian,(/)  on  the  [g)  witli  force 

and  arms,(A)  at  aforesaid,  in  the  county  aforesaid,(^)  and 

within  the  jurisdiction  of  the  said  court,  in  and  upon,  etc.,  one 
E.  F.,  etc./yj)  against  the  form  of  the  statute  {or  statutes)  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  {of 
the  sovereign  authority). {k) 

2d  Count.  And  the  jurors  aforesaid,  upon  their  oaths  (or  oaths 
and  affirmations)  aforesaid,  do  further  present,  that  the  said  A. 
B.  aforesaid,  to  wit,  on  the  day  and  year  aforesaid,  at  iu 

the  county  and  within  the  jurisdiction  aforesaid,  did,  etc.(^) 

{Conclude  as  in  first  count.) 


(a)  It  must  appear  in  the  commencement  of  each  count  of  an  indictment  tliat 
it  was  found  by  the  jurors  of  the  particuhir  jurisdiction,  on  tlieir  oaths  or  affirma- 
tions. 2  Hale,  167;  2  Hawk.  c.  25,  s.  126;  Burns,  J.,  Indictment,  ix.;  State 
V.  Conley,  89  Me.  78  ;  State  v.  Nixon,  18  Vt.  70  ;  Com.  v.  Fisher,  7  Gray,  492  ; 
Young  V.  State,  6  Ohio,  43.5  ;  Burgess  v.  Com.,  2  Va.  Cas.  483  ;  Clark  v.  State, 
1  Carter,  Ind.  253;  State  v.  Williams,  2  IMcCord,  301  ;  Morgan  v.  State,  19 
Ala.  556;  Byrd  i;.  State,  1  How.  (Miss.)  163;  Abram  v.  State,  25  Miss.  589. 
As  to  inserting  "good  and  lawful  men,"  see  Weinzorpflin  v.  State,  7  Blackf. 
186.  The  usual  form  is,  "  The  grand  jurors  for  the  State  (or  Commonwealth)  of 
A.,  infjuiring  for  the  city  (or  town)  of  B.,  upon  their  oaths  and  affirmations 
respectively  do  present."  'Fo  this,  as  a  title,  is  prefixed  the  statutory  name  of 
the  court.  "Oath"  maysup])ly  the  place  of  "oatlis."  State  v.  Dayton,  3  Zab. 
49;  Jerry  v.  State,  1  Blackf.  395.  That  the  commencement  may  be  amended 
see  Com.  v.  Colton,  11  Gray,  1  ;  State  v.  INlathis,  21  Ind.  277;  State  r.  Eng- 
land, 19  Mo.  481.  The  want  of  such  allegation  in  a  subsequent  count  will  not  be 
aided  by  such  allegations  in  a  former  count,  when;  there  is  no  reference  to  such 
former  count  for  the  finding  of  that  fact.  R.  v.  Wavcrton,  17  Q.  B.  562;  2  Den. 
C.  C.  347;  State  v.  McAlister,  26  Me.  374.  It  is  not  necessary  that  tlie  com- 
mencement should  use  tlie  term  "grand"  before  jurors,  when  the  rest  of  the 
record  shows  that  it  was  "  grand  jurors"  that  was  meant.  U.  S.  v.  Williams,  1 
Cliff.  C.  C.  5;   Com.  v.  Edwards,  4  Gray,  1  ;   State  ;;.  Pearcc,  14  Fla.  153. 

The  jurors  "  ot""  instead  of  "for"  is  not  bad  on  arrest  of  judgment.  R.  v. 
Turner,  2  M.  k  Hob.  214,  Burke,  J. ;  see  1  Chit.  C.  L.  327. 

9 


(2) 


GENERAL    FRAME    OF    INDICTMENT. 


(h)  At  common  law  the  jurors  must  appear  to  be  of  the  county.  Whitehead 
V.  R.,  14  Law  J.  (i\I.  C.)  1G5;  see  infra,  3,  4,  5,  et  seq.,  tor  the  forms  and 
autluirities  in  the  several  States. 

(c)  Wiiere  the  jurors  entertain  conscientious  objections  to  taking  an  oath,  the 
proper  course  is  to  insert  "  oaths  and  affirmations"  (Dickinson's  Q.  8.  200  ;  Key's 
case,  9  C.  &  P.  78)  ;  and  this  is  always  the  case  in  Pennsylvania,  though  in  other 
states  the  practice  has  been  relaxed,  and  the  phrase  "oath"  seems  adopted  as  a 
settled  form.  And  it  is  enough  to  state  simply  "  oath  and  affirmation,"  without 
giving  reasons  wh}'  any  of  the  jurors  were  affirmed  instead  of  being  sv/orn.  Com. 
V.  Brady,  7  Gray,  32().     Supra,  p.  5;   though  see  State  v.  Harris,  2  Halst.  457. 

(d)  The  indictment  must  be  certain  as  to  the  defendant's  name.  Bac.  Abr. 
Misn.  B.  ;  2  Hale,  175;  Chitty's  C.  L.  167;  Enwrigdit  v.  State,  58  Ind.  5G7. 
The  name  should  be  repeated  to  every  distinct  allegation ;  but  it  Avill  suffice  to 
mention  iit  once  as  the  nominative  case  in  one  continuing  sentence. 

When  once  given  in  full,  the  name  need  only  be  repeated  by  the  Christian 
title  as  "tlie  said  John"  or  "James,"  as  the  case  may  be.  State  v.  Pike,  65 
Me.  111.  But  each  count  must  describe  the  defendant  by  his  full  name.  R.  v. 
Waters,  1  Den.  C.  C.  356  ;  Com.  v.  Sullivan,  G  Gray,  478.  An  indictment 
against  "Edward  Toney  Joseph  Scott,"  laborers,  intended  for  Edward  Toney 
and  Joseph  Scott,  is  bad.     State  v.  Toney,  13  Tex.  74. 

If  the  surname  of  the  defendant  be  omitted  in  the  presenting  portion  of  an  in- 
dictment, the  defect  is  fatal,  tliough  the  full  name  be  mentioned  in  subsequent 
allecations  referring  to  the  name  as  their  antecedent.  State  v.  Hand,  1  Eng. 
(Ark.)  165. 

A  ])lea  in  abatement  will  be  maintained  when  the  Christian  name  of  the 
defendant  is  mistaken.  2  Hale,  176,  237,  238  ;  2  Hawk.  c.  25,  s.  68  ;  Bac.  Ab 
Ind.  G.  2,  Misn.  B.  ;  Burn,  J.,  Indict.;  Gilb.  C.  P.  217;  Com.  v.  Deniain, 
Brightly  R.  441.  A  mistake  as  to  the  surname  is  now  held  equally  fatal.  10 
East,  83;  Kel.  11,  12.  After  verdict  the  objection  is  too  late.  Wh.  Cr. 
PI.  &  Pr.  §§  106,  423;  State  v.  Bishop,  15  Me.']  22;  State  v.  Nelson,  29  Me. 
329;  Smith  v.  Bowker,  1  Mass.  76;  Com.  o.  Lewis,  1  Met.  151;  Com.  u. 
Fredericks,  119  Mass.  199;  Com.  v.  Cherry,  2  Va.  Cas.  20;  State  v.  White,  32 
Iowa,  17  ;  Miller  v.  State,  54  Ala.  155  ;   Foster  v.  State,  1  Tex.  Ap.  531. 

Misspelling  does  not  vitiate  if  the  sound  of  the  name  is  not  affected.  10  East, 
84;  16  East'",  110;  2  Hawkins,  c.  27,  s.  81;  Wii.  Cr.  PI.  &  Pr.  ^  119;  Wh. 
Cr.  Ev.  §§  94  et  seq.  If  two  names  are,  in  original  derivation,  the  same,  and 
are  taken  promiscuously  in  common  use  thougii  they  differ  in  sound,  there  is 
held  to  be  no  variance.  2  Rol.  Ab,  135  ;  Bac.  Ab.  Misn.,  where  the  instances 
of  this  principle  are  stated  at  large. 

A  blank  in  either  Christian  name  or  surname  is  ground  for  a  motion  to  quash, 
or  plea  in  abatement.      Wh.  Cr.  PI.  and  Pr.  §§  385,  425. 

The  surname  may  be  such  as  the  defendant  has  usually  gone  by  or  acknowl- 
edged ;  and  if  there  be  a  doubt  Avhich  one  of  two  names  is  his  real  surname, 
the  second  may  be  afhled  in  the  indictment  after  an  alias  dictus.  Bro.  Misn. 
37.     Proof  of  either  will  be  enough.      State  v.  Graham,  15  Rich.  (S.  C.)  310. 

It  was  once  doubted  whether  there  could  be  an  alias  of  the  Christian  name. 
1  Ld.  Raym.  562;  Willes,  554;  Burn,  J.,  Indict.  ;  3  East,  HI.  This  doctrine, 
Mr.  Chitt}'  well  argues,  is  not  well  founded  ;  for,  admitting  that  a  person  cannot 
have  two  Christian  names  at  the  same  time,  yet  he  may  be  called  bv  two  such 
names,  which  is  sufficient  to  support  a  declaration  or  indictment,  ba])tism  being 
immaterial.  R.  T.  H.  26  ;  6  Mod.  116  ;  1  Camp.  479.  And  Lord  Ellenborough 
said  tliat  for  all  he  knew,  on  a  demurrer,  "Jonathan,  otherwise  John,"  might  be 
all  one  Christian  name.      Scott  v.  Soans,  3  East,  111. 

The  inhabitants  of  a  parish,  in  England,  may  be  indicted  for  not  repairing  a 
highway,  or  the  inhabitants  of  a  county,  for  not  repairing  a  bridge,  without 
naming  any  of  tliem.  2  Roll.  Abr.  79.  And  for  all  disobedience  to  statutes  and 
derelictions  of  duty,  the  better  opinion  is  that  a  corporation  aggregate  may  be 
indicted  by  its  corporate  name ;   wliich  name  must,  as  a  rule,  be  correctly  alleged 

10 


NAMES   OF   DEFENDANTS.  (2) 

as  it  existed  at  the  time  of  the  offence.  Wh.  Cr.  L.  8tli  ed.  §§  91-2;  R.  v. 
Creat  North  of  Entrlaiid  11.  11.  Co.,  9  Q.  B.  315;  R.  r.  Mayor,'  etc.,  of  Man- 
chester, 7  El.  &  B\.  453;  R.  V.  Birni.  &  Glou.  Railway  Co.,  3  Ad.  &  El. 
223  ;  9  C.  &  P.  478  ;  State  v.  Vermont  C.  R.  R.,  28  Vt.  583  ;  Com.  v.  Philips- 
burp,  10  Mass.  78;  Com.  v.  Dedham,  16  Ibid.  142;  Com.  v.  Demiith,  12  S.  & 
R.  389.  But  see  State  v.  Great  AVorks,  20  Me.  41  ;  McGary  v.  People,  45  N.  Y. 
153  ;   Com.  i'.  Turnpike  Co.,  2  Va.  Cas.  3G2. 

In  several  jurisdictions  it  has  been  determined  that  the  law  does  not  recotrnize 
more  than  one  Christian  name,  and,  therefore,  when  the  middle  names  of  the 
defendant  are  omitted,  the  omission  is  right.  R.  i\  Newman,  1  Ld.  Raym. 
562;  Roozevelt  v.  Gardiner,  2  Cow.  463;  People  v.  Cook,  14  Barb.  259; 
Edmondson  ?•.  State,  17  Ala.  179;  State  i'.  Manninjr,  14  Texas,  402;  State  v. 
Williams,  20  Iowa,  98.  See  State  v.  Smith,  7  En^.  622  ;  West  v.  State,  48  Ind. 
483;  State  i\  Martin,  10  Mo.  391.  The  averment,  if  made,  must  be  proved. 
Price  V.  State,  19  Oh.  423;  State  v.  Hughes,  1  Swan  (Tenn.),  261;  State  v. 
Webster,  30  Ark.  16G  ;  but  see  contra,  People  v.  Lockwood,  6  Cal.  205  ;  Mil- 
ler V.  People,  39  111.  457.  It  was  held  a  misnomer,  however,  when  T.  H.  P. 
was  indicted  by  the  name  of  T.  P.  ;  he  being  generally  known  as  T.  H.  P. 
Com.  V.  Perkins,  1  Pick.  388.  See,  to  same  effect.  State  v.  Homer,  40  Me. 
438;  Com.  v.  Halt,  3  Pick.  362.  The  omission  of  the  first  name,  giving  only 
the  middle,  is  fatal,  unless  the  party  is  only  known  by  the  middle  name.  State 
V.  Hughes,  1  Swan,  266  ;  State  v.  "Martin,  10  Mo.  391.  See  Hardin  v.  State, 
26  Tex.  113.  The  true  view  is  that  when  a  party  is  known  b}'  a  combination  of 
names,  by  these  he  should  be  described  ;  though  it  is  otherwise  when  he  is  only 
known  by  a  single  name.  Wh.  Cr.  Ev.  §  100.  Where  names  are  ordinarily 
written  with  an  abbreviation,  this  will  be  sufficient  in  an  indictment.  State  v. 
Kean,  10  N.  H.  347.  See  Com.  v.  Kelcher,  3  Mete.  (Ky.)  484  ;  Gatty  r.  Eield, 
9  Ad.  &  El.  (N.  S.)  431.  And  where  a  luan  is  in  the  habit  of  using  initials  for 
his  Christian  name,  and  he  is  so  indicted,  and  the  fact  Avhether  he  was  so  known 
is  put  in  issue,  and  he  is  convicted,  the  court  will  not  interfere  on  that  ground. 
R.  V.  Dale,  17  Q.  B.  64;  Tweedy  v.  Jarvis,  27  Conn.  42;  Vandermark  v. 
People,  47  111.  122;  City  Coun.  v.  King,  4  McCord,  487;  State  v.  Anderson,  3 
Rich.  172;  State  v.  Bell,  65  N.  C.  313;  State  v.  Johnson,  67  N.  C.  58;  State 
V.  Black,  31  Tex.  560. 

"  Lord  Campbell,  Avhen  an  objection  was  made  to  a  recognizance  taken  before 
L.  B.  Townshend,  Esq.,  and  I.  H.  Harper,  Esq.,  that  only  the  initials  of  the 
Christian  names  of  the  justices  were  mentioned,  remarked:  '  I  do  not  know  that 
these  are  initials;  I  do  not  know  that  they  (tlie  justices)  were  not  baptized  with 
those  names  ;  and  I  must  say  that  I  cannot  accjuiesce  in  the  distinction  tluit  was 
made  in  Lomax  v.  Tandels,  that  a  vowel  may  be  a  name  but  a  consonant  can- 
not. I  allow  that  a  vowel  may  be  a  Christian  name,  and  why  may  not  a  conso- 
nant ?  Why  might  not  the  parents,  for  a  reason  good  or  bad,  say  that  their  child 
should  be  baptized  by  the  name  of  B.,  C,  D.,  E.,  or  H.  ?  I  am  just  informed, 
by  a  person  of  most  credible  authority,  that  within  his  own  knowledge  a  person 
has  been  baptized  by  the  name  of  T.'  And  in  tliis  opinion  of  tlie  chief.  Justices 
Patterson,  Wightman,  and  Erie  concurred.  R.  u.  Dale,  15  Jur.  657;  5  E.  L. 
&  E.  360."      18  Alb.  L.  J.  127  ;  S.  P.,  Tweedy  v.  Jarvis,  27  Conn.  42. 

But  in  Kinnersley  v.  Knott,  7  C.  B.  980,  ]Mr  Sergeant  Talfourd  contended 
that  a  defendant  called  "John  M.  Knott"  was  not  legally  and  ])roperly  desig- 
nated, saying  that  the  letter  M,  standing  by  itself,  could  not  be  pronounced  and 
meant  nothing,  but  that  in  this  connection  it  meant  something,  and  that  that 
something  ought  to  be  stated,  for  the  law  forbade  the  use  of  initials  in  pleadings. 
The  court  held  that  INI  was  not  a  name.  Maule,  J.,  said,  that  vowels  might 
be  names,  and  that  in  Sully's  Memoirs  a  Monsieur  D'O  is  spoken  of;  but 
that  consonants  coulil  not  be  so  alone,  as  they  require  in  pronunciation  the  aid  of 
vowels ;  and  the  chief  justice  said  that  the  courts  had  decided  tliat  they  would 
not  assume  that  a  consonant  expresses  a  name,  but  that  it  stood  for  an  initial  only, 
and  that  the  insertion  of  an  initial  instead  of  a  name  was  a  ixroimd  of  demui-rer. 

11 


(2)  GENERAL    FRAME    OF    INDICTMENT. 

In  this  country  sinfjlc  consonants  may  be  names.  18  Alb.  L.  J.  127.  See  Mead 
V.  State,  2(3  Oh.  St.  505  ;   State  v.  Brite,  73  N.  C.  2G. 

In  Gerrish  v.  State,  53  Ala.  47G,  the  defendant  was  indicted  by  the  name  of 
F.  A.  Gerrish,  and  he  pleaded  that  his  name  was  not  F.  A.  Gerrish,  but  Frank 
Augustus  Gerrisli,  and  that  he  was  o-enerally  known  as  Frank  A.  Gerrish,  and 
that  this  was  known  to  the  grand  jury  that  indicted  liim.  The  plea  was  held 
good. 

A  motion  to  quash  will  be  refused  when  based  simply  on  the  adoption  of  ini- 
tials for  Christian  names.     U.  S.  i\  Winter,  13  Blatch.  276. 

UnJcnoivn. — Where  the  name  of  the  defendant  is  unknown,  and  he  refuses  to 
disclose  it,  he  may  be  described  as  a  person  whose  name  is  to  the  jurors  unknown, 
but  who  is  personally  brought  before  them  by  the  keeper  of  the  prison.  State  v. 
Angell,  7  Iredell,  27.  An  indictment  against  him  as  a  person  to  the  jurors  un- 
known, without  something  to  ascertfiin  whom  the  grand  jury  meant  to  designate, 

will  be  insuflicient.     R.  v.  ,  R.   &  11.   489.     The  practice  is  to  indict  the 

defendant  by  a  specific  name,  such  as  John  No-name,  and  if  he  pleads  in  abate- 
ment, to  send  in  a  new  bill,  inserting  the  real  name  which  he  then  discloses,  by 
which  he  is  bound.  This  course  is  in  some  States  prescribed  by  statute.  See 
Geiger  v.  State,  5  Iowa,  484. 

A  known  party  cannot  be  indicted  as  unknown.  Wh.  Cr.  PI.  &  Pr.  §  211  ; 
W'h.  Cr.  Kv.  8th  ed.  §  97;  Geiger  v.  State,  5  Iowa,  484.  See,  as  to  Christian 
name.  Stone  v.  State,  30  Ind.  115  ;   Wilcox  v.  State,  31  Tex.  58G. 

The  Christian  name  may,  if  necessary,  be  averred  to  be  unknown.  Kelley  r. 
State,  25  Ark.  392  ;  Bryant  v.  State,  3G  Ala.  270;  Smith  v.  Bayonne,  23  La. 
An.  78. 

As  to  pleading  unknown  co-conspirators  see  Wh.  Cr.  L.  8th  ed.  §  1393. 

Junior  and  Senior. — The  old  rule  was  that  when  a  father  and  son  of  the  same 
name  lived  in  the  same  community,  they  should  be  distinguished  as  "  Senior" 
and  "Junior."  1  Bulst.  183;  2  Hawk.  c.  25,  s.  70;  Salk'^  7.  This,  however, 
is  not  now  requisite  in  cases  where  a  party  is  not  known  by  a  designation  of  this 
class.  Hodgson's  case,  1  Lewin  C.  C.  23G  ;  Peace's  case,  3  Barn.  &  Aid.  579  ; 
State  V.  Grant,  22  ]\Ie.  171  ;  State  v.  AVeare,  38  N.  H.  314  ;  Allen  v.  Taylor, 
26  Vt.  599  ;  Com.  v.  Perkins,  1  Pick.  388;  Com.  (;.  Parmenter,  101  Mass.  211  ; 
People  V.  Cook,  14  Barb.  259  ;  People  v.  Collins,  7  Johns.  549  ;  jNIcKay  v. 
State,  8  Tex.  3  7G.  See  Coit  v.  Starkweather,  8  Conn.  289  ;  Com.  r.  East  Bos- 
ton Ferry  Co.,  13  Allen,  589  ;  State  r.  Yittum,  9  X.  H.  519  ;  R.  r.  Bailey,  7  C. 
&  P.  264  ;  R.  V.  Peace,  3  Barn.  &  Aid.  579  ;  Jackson  ex  dem  Pell  iu  Provost,  2 
Caines,  165.  In  Com.  v.  Parmenter,  101  Mass.  211,  it  was  held  that  "W.  R., 
Jr.,"  might  be  indicted  as  "  W.  R.,"  the  second  of  that  name.  The  question 
is  one  of  usage,  li  a  party  is  commonly  known  as  "Junior"  or  as  "2d,"  as 
such  he  must  be  indicted  ;   otherwise  not.      AVh.  Cr.  Ev.  §  100. 

(e)  Residence. — The  defendant  must  be  described  as  of  the  town  or  hamlet,  or 
place  and  county,  of  which  he  was  or  is,  or  in  which  he  is  or  was,  conversant. 
Archbold's  C.  P.  27.  In  most  States,  the  forms  in  common  use  give  the  addi- 
tion of  place,  as  "late  of  the  same  county,"  or  "  of  the  county  of ."     The 

place  may  be  averred  to  be  that  of  the  commission  of  the  crime.  Com.  v.  Taylor, 
113  Mass.  1. 

Addition.  —  Stat.  1  Henry  5,  c.  5,  in  force  in  several  states,  specifies  the 
following  additions  :  "Estate,  or  degree,  or  mystery;"  and  also  the  addition  of 
the  "towns,  or  hamlets,  or  places,  and  counties  of  which  they  were  or  be,  or  in 
which  they  be  or  \^ere  conversant."  See,  as  to  Pennsylvania,  Roberts's  Dig.  2d 
ed.  374.  The  construction  given  to  the  statute  in  England  has  been,  that  the 
words  "  estate  or  degree"  have  the  sami?  signification,  and  include  the  titles,  dig- 
nities, trades,  and  professions  of  all  ranks  and  descriptions  of  men.  2  Inst.  666. 
This  statute  is  in  force  in  Pennsylvania.  Com.  v.  France,  3  Brewster,  148. 
The  omission  of  the  addition  is  at  common  law  fatal.  State  v.  Hughes,  2  Har. 
&  McH.  479,    Com.  v.  Sims,  2  Va.  Cases,   374.       As  to  Indiana  see   State  v. 

12 


NAMES — TIME.  (2) 

McDowell,  6  Blaokf.  49.  In  most  jurisdictions  additions  are  no  longer  necessary. 
]\Iystery  means  the  defendant's  trade  or  occupation  ;  such  as  merchant,  mercer, 
tailor,  schoolmaster,  husbandman,  laborer,  or  the  like.  2  Hawk.  c.  33,  s.  111. 
AVhere  a  man  has  two.trades,  he  may  be  named  of  either.  2  Inst.  G58.  But  if 
a  man  who  is  a  "gentleman"  in  England  be  a  tradesman,  he  should  be  named 
by  the  addition  of  gentleman.  2  Inst.  GG9.  In  all  other  eases  he  may  be  in- 
dicted by  his  addition  of  degree  or  mystery,  at  the  option  of  his  prosecutor.  See 
Mason  c.  Bushel,  8  Mod.  51,  .52;  Horspoole  v.  Harrison,  1  Str.  55G  ;  Smith  v. 
Mason,  2  Str.  816;   2  Ld.  Raym.  1541. 

(/)  Though,  Avhen  tiiere  is  no  addition,  the  correct  course  at  common  law  is  to 
quash,  yet,  when  there  is  a  misnomer,  the  only  method  of  meeting  tlie  ei-ror  is 
by  plea  in  abatement.  State  v.  Bishop,  15  Me.  122;  State  v.  Nelson,  29  ]\le. 
329;  Smith  v.  Bowker,  1  Mass.  76;  Com.  v.  Lewis,  1  Met.  151  ;  Com.  v.  De- 
main,  Briglitly  R.  441  ;  Lynes  v.  State,  5  Port.  236  ;  Com.  v.  Cherry,  2  Va. 
Cas.  20;  State  v.  White,  32  Iowa,  17.  Wh.  Cr.  PL  &  Pr.  §§  385,  423.  The 
error,  however,  must  be  one  of  substance ;  hence  a  plea  in  abatement  that  James 
Baker  is  a  husbandman,  and  not  a  laborer,  being  demurred  to,  was  adjudged  bad. 
Haught  V.  Com.,  2  Va.  Cas.  3.     See,  however.  Com.  v.  Sims,  2  Va.  Cas.  374. 

In  ordinary  cases  it  is  sufficient  to  give  the  additions  of  yeoman  or  laborer. 
8  Mod.  51,  52  ;  1  Str.  556  ;  2  Str.  816  ;  2  Ld.  Raym.  1541.  To  tradesmen  may  be 
given  the  addition  of  their  trade  ;  to  widows,  the  addition  of  widows  ;  to  single 
women,  the  addition  of  spinster  or  single  woman ;  to  married  women,  usually 
thus  :  "Jane,  tlie  Avife  of  John  Wilson,  late  of  tlie  parish  of  C,  in  the  county  of 
B.,  laborer,"  though  "matron"  is  not  fatal.  State  r.  Nelson,  29  Me.  329.  La- 
borer (R.  V.  Franklyn,  2  Ld.  Raym.  1179),  or  yeoman  (2  Inst.  668),  is  not  a 
good  addition  for  a  woman.  Servant  is  not  a  good  addition  in  any  case.  R.  v. 
Checkets,  6  M.  &  S.  88. 

Any  addition  calculated  to  cast  contempt  or  ridicule  on  the  defendant  is  bad  ; 
and  it  has  been  held,  in  Maine,  that  the  addition  "  lottery  ?;e?;c/e?","  when  the 
defendant  was,  in  fact,  a  lottery  broker,  is  bad  on  abatement.  State  v.  Bishop, 
15  Me.  122. 

Where,  in  an  indictment  against  a  woman,  she  is  described  as  A.  B.,  "  wife  of 
C.  D.,"  these  latter  words  are  held  to  be  mere  additions,  or  descriptio  personae, 
and  need  not  be  proved  on  trial.     Com.  v.  Lewis,  1  Met.  151. 

{(j)  Time  and  place  must  be  attached  to  every  material  fact  averred.  1  Chit, 
on  Pleading,  4th  ed..  Index,  tit.  Time;  R.  v.  Hollond,5T.  R.  607  ;  R.  v.  Avlett, 
1  T.  R.  69  ;  Stand.  95  a ;  R.  v.  Haynes,  4  M.  &  S.  214  ;  State  v.  Baker,  4  "Red- 
ing. 52;  State  v.  Hanson,  39  Me.  337;  Criehton  v.  People,  6  Park.  C.  R.  363  ; 
Roberts  v.  State,  19  Ala.  526  ;  State  v.  Walker,  14  Mo.  398;  State  v.  Beck- 
with,  1  Stewart,  318;  Sanders  v.  State,  26  Tex.  119;  State  v.  Slack,  30  Tex. 
354;  People  v.  Littlelield,  5  Cal.  355;  though  see  State  y.  Barnett,  3  Kans.  250. 
The  time,  however,  of  committing  the  otl'enee  (except  where  the  time  enters  into 
the  nature  of  the  offence)  may  be  laid  on  any  day  previous  to  the  iinding  of  the  bill, 
during  tlie  period  witliinwhicli  it  may  be  prosecuted.  Wh.  Cr.  Ev.  §  102;  U.  S. 
V.  Bowman,  2  AVash.  C.  C.  328  ;  Com.  v.  Dillane,  1  Gray,  483  ;  Peoi)le  v.  Van 
Santvoord,  9  Cow.  660  ;  Turner  n.  People,  33  Mich.  363  ;  Cook  ?'.  State,  11  Ga. 
53;  Wingard  v.  State,  13  Ga.  396;  Shelton  v.  State,  1  Stew.  &  Por.  208 ; 
M'Dade  v.  State,  20  Ala.  81  ;  McBryde  v.  State,  34  Ga.  202  ;  State  v.  .Alagrath, 
19  Mo.  678. 

To  assign  the  day  as  that  of  the  finding  of  the  bill,  or  subsequent  thereto,  is  bad. 
State  ('.  Munser,  15  Vt.  291  ;  State  c.^Litch,  33  Vt.  67  ;  Com.  v.  Doyle,  110 
Mass.  103  ;  Jacobs  v.  Com.,  5  S.  &  R.  316  ;  State  v.  Noland,  29  Ind.  212  ;  Joel 
V.  State,  28  Tex.  642.     Wii.  Cr.  PI.  &  Pr.  §  134. 

If  a  day  certain  be  laid  before  the  finding,  other  insensible  dates  may  be  re- 
jected as  surplusage.  Wells  v.  Com.,  12  Gray,  326  ;  State  v.  Woodman,  3  Hawks, 
384  ;  Cook  v.  State,  11  (ia.  53.     Wh.  Cr.  PI.  &  Pr.  §  125. 

Where  there  is  a  statute  autiiorizing  amendments  of  formal  errors,  dates  when 
formal  may  be  amended.     Myers  v.  Com.,  79  Penn.  St.  308. 

13 


(2) 


GENERAL    FRAME    OF    INDICTMENT. 


Sunday. — ^The  statement  of  the  day  of  the  month,  in  an  indictment  for  an 
offence  on  Sunchiy,  tlioiigh  the  doing  of  the  act  on  that  day  is  the  gist  of  tlie 
oifence,  is  not  more  material  than  in  other  cases ;  and  lience,  if  the  indictment 
charge  the  offence  to  have  been  committed  on  Sunday,  thougli  it  names  a  day 
of  the  month  wliich  does  not  fall  on  Sunday,  it  is  good.  II.  v.  Trehearne,  1 
Mood.  C.  C.  298;  Com.  v.  Harrison,  11  Gray,  308;  People  v.  Ball,  42  Barbour, 
324;  State  v.  Eskridge,  1  Swan  (Tenn.),  413  ;  State  v.  Drake,  64  N.  C.  589. 
But  see  Werner  v.  State,  51  Ga.  426.  For  proof  see  Wh.  Cr.  Ev.  §  106.  But 
"  Sunday"  or  "  Sabbath"  must  be  averred,  whichever  tlie  statute  may  i)rescribe. 
See  R.  v.  Trehearne,  1  Mood.  C.  C.  298;  Com.  v.  Harrison,  11  Gray,  308; 
McGowan  v.  Com.,  2  Mete.  (Ky.)  3  ;  Frazier  v.  State,  19  Mo.  6  78.  Cf.  State 
V.  Land,  42  Ind.  311.  And  it  has  been  said  that  "  Sabbath"  for  "  Sunday"  is 
no  variance.     State  v.  Di-ake,  64  N.  C.  589. 

A  videlicet  {i.  e.,  "  that  afterwards,  to  wit,"  etc.)  was  used  by  the  old  pleaders 
when  they  wished  to  aver  a  date  or  other  fact  tentatively,  for  information,  with- 
out binding  themselves  to  it  as  a  matter  of  essential  description,  a  variance  in  re- 
spect to  wliich  would  be  fatal.  And  the  videlicet  can,  if  repugnant,  be  stricken 
out  as  surplusage,  when  there  is  enough  remaining  to  make  out  the  charge. 
Ryalls  r.  R.  (in  error),  11  Q.  B.  781;"l8  L.  J.  M.  C.  69— Exch.  Cham.  But 
see  People  c.  Jackson,  3  Denio,  101  ;  and  Mallett  r.  Stevenson,  26  Conn.  428; 
where  the  indclicet  was  held  to  narrow  the  preceding  averment.  AVh.  Cr.  Ev. 
§  141.  A  videlicet  relieves  the  pleader  from  the  necessity  of  proving  a  non- 
essential descriptive  averment  1  Green.  Ev.  §  60  ;  1  Ch.  PI."  31 7  ;  State  i'.  Heck, 
23  Minn.  551. 

After  verdict,  to  support  an  indictment,  and  to  show  that  the  provisions  of  a 
statute  have  been  complied  with,  dates  laid  under  a  videlicet  may  be  taken  to  be 
true.     R.  V.  Scott,  D.  &  B.  C.  C.  47. 

Before  vei-dict,  however,  and  at  common  law,  dates  laid  in  a  videlicet,  when 
time  is  material,  may  be  traversed  ;  and  hence,  if  laid  insensibly,  will  vitiate  the 
context.  In  other  words,  when  an  allegation  is  material,  accuracy  in  stating  it 
cannot  be  dispensed  with  by  thrusting  it  into  a  videlicet.  See  State  v.  Phinney, 
32  Me.  440;  Paine  v.  Fox,  16  Mass.  129;  State  v.  Haney,  1  Hawks,  4C0;  2 
Saund.  291  ;  1  Ch.  C.  L.  226. 

The  month  without  the  year  is  insufficient.  Cora.  Dig.  Ind.  s.  2  ;  Com.  v. 
Griffin,  3  Cush.  523.  And  so  wiien  the  month  is  given  but  the  day  is  left  blank. 
Clark  V.  State,  34  Ind.  436.  If  tlie  date  be  laid  in  blank  the  judgment  will  be 
arrested.  Stater.  Beckwith,  1  Stew.  318;  State  v.  Roache,  2  Hayw.  352  ; 
Jane  v.  State,  3  Mo.  45  ;  see  Com.  v.  Hutton,  5  Gray,  89  ;  Jacobs  v.  Com.,  5  S. 
&  R.  315;  Simmons  y.  Commonwealth,  1  Rawle,  142;  State  v.  Hopkins,  7 
Blackf.  494. 

It  is  ruled  that  A.  D.,  in  initials,  will  be  sufficient  where  a  reference  to  the 
Christian  era  is  required.  State  v.  Reed,  35  Me.  489  ;  State  v.  Hodgeden,  3 
Vt.  481.  But  the  better  opinion  is  that  '■^anno  domini,"  "  A.  D.,"  and  "  in  the 
year  of  our  Lord,"  may  be  dispensed  with.  Broome  v.  R.,  12  Q.  B.  834  ;  State 
V.  Gilbert,  13, Vt.  647  ;  State  v.  Haddock,  2  Hawks,  461  ;  State  v.  Dickens,  1 
Hayw  406;  Halle.  State,  3  Kelly,  18;  Engleman  v.  State,  2  Carter  (Ind.), 
91  ;  State  v.  Munch,  22  Minn.  67  ;  though  see  Whitesides  v.  Peojile,  1  Breese, 
4.  The  dates  may  be  given  in  Arabic  figures.  Wh.  Cr.  PI.  &  Pr.  §  274  ;  State 
V.  Reed,  35  Me.  489  ;  State  v.  Hodgeden,  3  Vt.  481  ;  State  v.  Jerfcho,  40  Vt. 
121;  Com.  v.  Hagarman,  10  Allen, ^401  ;  Com.  v.  Adams,  1  Gray,  48:  Lazier 
/■.  Com.,  10  Grat.  708  ;  Cady  v.  Com.,  lOGrat.  776;  State  v.  Dickens,  1  Hayw. 
406;  State  v.  Haddock,  2  Hawks,  461;  Stater.  Lane,  4  Ircd.  113;  Stater. 
Raiford,  7  Port.  101;  State  v.  Smith,  Peck,  165;  State  v.  Egan,  10  La.  An. 
699;  Kelly  r.  State,  3  S.  &  M.  518;  State  v.  Seamons,  1  Iowa,  418;  though 
see  contra,  at  common  law  in  New  Jersey  and  Indiana,  Berrian  r.  State,  2 
Zabriskie,  9;  State  v.  Voshall,  4  Ind.  590;  Finch  v.  State,  6  Blackf.  533.  In 
both  States  this  is  corrected  by  statute.  Johnson  v.  State,  2  Dutch.  (N.  J.) 
133.  So  also  as  to  Indiana,  Hizer  r.  State,  12  Ind.  330.  It  should  be  averred 
14 


TIME.      ■  (2) 

which  figures  designate  the  year.  It  is  not  enough  to  say  "the  fifteentli  of  June 
1855."     Com.  V.  McLoon,  5  Gray,  91. 

To  aver  that  the  defendant,  on  divers  days,  committed  an  offence,  is  bad  ;  and 
so  where  two  distinct  days  are  averred.  1  Ld.  Raym.  581;  10  Mod.  249;  2 
Hawk.  c.  25,  s.  82  ;  Cro.  C.  C.  36  ;  4  Mod.  101  ;  Com.  v.  Adams,  1  Gray,  481  ; 
State  V.  Brown,  3  Jlurph.  224  ;  State  v.  Weller,  3  Murph.  229  ;  State  r. 'Hayes, 
24  Mo.  358,  corrected  by  statute,  1852,  p.  368;  Hampton  i;.  State,  8  Ind.  3'36  ; 
State  V.  Hendricks,  Conf.  369.  Aliter  under  N.  Y.  statute.  New  York  v. 
Mason,  4  E.  D.  Smith,  142.  To  aver  a  series  of  blows  on  successive  days, 
resulting  in  death,  is  not  bad.  Com.  v.  Stafford,  12  Cush.  619.  It  is  sufficient 
to  state  that  on  a  day  specified,  as  well  as  on  certain  other  days,  the  defendant 
kept  a  gaming-house,  a  tippling-house,  or  a  common  nuisance  ;  the  allegation, 
"certain  other  days,"  being  rejected  as  surplusage.  Starkie's  C.  P.  60;  U.  S. 
V.  La  Costa,  2  Mason,  129;  States.  Cofren,  48  Me.  365;  Com.  .u.  Pray,  13 
Pick.  359;  Wells  v.  Com.,  12  Gray,  326;  People  v.  Adams,  17  Wend.  475; 
States.  Jasper,  4  Dev.  323  ;  State  i?.  May,  4  Dev.  328;  Cook  t-.  State,  11 
Ga.  53. 

Continitnndo. — When  a  continiiando  is  to  be  aveiTcd  (e.  y.,  in  cases  of  continu- 
ous bigamy  or  continuous  nuisance),  the  periods  between  v.diich  the  oM'ence  is 
charged  to  continue  should  be  specified.  See  2  Hawk.  P.  C.  c.  25,  s.  G2  ;  U.  S. 
V.  Fox,  1  Low.  301  ;  U.  S.  v.  La  Co.sta,  2  Mason,  140;  State  v.  Munger,  15 
Vt.  290;  State  v.  Temple,  38  Vt.  37;  Wells  c.  Com.,  12  Gray,  326;  Com.  v. 
Tower,  8  Met.  527;  Com.  i\  Travers,  11  Allen,  260;  Peojde  v.  Adams,  17 
Wend.  475.  The  limit  may  be  fixed  at  the  day  of  finding  tiie  bill.  Com.  v. 
Stone,  3  (iray,  453  ;  but  see  Com.  r.  Adams,  4  Gray,  27. 

Without  the  allegation  of  a  contimntndti,  or  a  tantamount  allegation  of  con- 
tinuance, there  can,  on  indictments  for  nuisance,  be  no  abatement.  AVli.  Cr. 
L.  8th  ed.  §  1426  ;   R.  v.  Stead,  8  T.  R.  142. 

An  allegation  that  the  offence  therein  charged  was  committed  on  a  certain 
specified  "day  of  September  nuw  passed,"  is  not  stated  with  sufficient  certainty  ; 
Com.  V.  Griffin.  3  Cush.  523. 

It  has  been  said  that  the  words  "on  or  about"  a  particular  day  may  be  treated 
as  mere  surplusage.  State  v.  TuUer,  34  Conn.  280;  Hampton  v.  State,  8  Jnd. 
336.  This,  however,  cannot  be  accepted  at  common  law.  U.  S.  v.  Crittenden, 
Hemp.  61;  U.  S.  v.  Winslow,  3  Sawyer,  337;  State  v.  O'Keefe,  41  Vt.  691  ; 
State  V.  Land,  42  Ind.  311  ;  Effinger  v.  State,  4  7  Ind.  256  ;  Barnhouse  v.  State, 
31  Oh.  St.  39;   Morgan  v.  State,  'l3  Florida,  G71. 

It  is  incorrect  to  lay  the  ofFence  between  two  days  specified.  1  Ld.  Raym. 
581;  10  Mod.  249;  2  Hawk.  c.  25,  .s.  82;  Cro.  C.  C.  36;  Burn,  J.,  Indict.; 
Williams,  J.,  Indict,  iv.  ;   1  Chitty,  C.  L.  216;   State  v.  Temple,  38  Vt.  37. 

Neglect  or  non-performance,  it  has  been  argued,  requires  no  specification  of 
either  time  or  ])lace.  2  Hawk.  c.  25,  s.  79  ;  Starkie's  C.  P.  61.  But  see  Arch- 
bold's  C.  P.  34;  Com.  v.  Slicifield,  11  Cush.  178.  But  the  proper  course  is  to 
aver  that  the  defendant,  at  an  assigned  time,  had  a  j)articular  duty  imjiosed  on 
him,  and  that  he,  at  that  time,  neglected  to  discharge  that  duty.  See  AVh.  Cr. 
L.  8th  ed.  §§  125,  329,  for  cases. 

The  practice  is  to  give  the  day  and  year  of  the  Christian  era  according  to  the 
calendar  rendering.     Bac.  Ah.  Lidict.  G.  4. 

I'he  wrong  recital  of  Ihe  date  of  a  statute  is  immaterial.  People  r.  Reed,  47 
Barb.  235.  And  such  is  the  case  with  all  erroneous  I'ecitals  except  those  of  writ- 
ten or  printed  documents  in  cases  where  such  documents  nuist  be  accurately  set 
forth.  The  hour  .at  which  an  act  was  done,  unless  it  be  required  by  the  statute 
upon  which  the  indictment  is  framed,  need  not  be  specified.  2  Hawk.  c.  25,  s. 
76.  And  see  Combe  r.  Pitt,  3  Burr.  1434  ;  R.  v.  Clarke,  1  Bulst.  204  ;  2  Inst. 
318;  R.  V.  Davis,  10  B.  &  C.  89.  In  burglary.  Indeed,  it  Is  usual  to  state  it; 
but  alleging  the  ofi'ence  to  have  been  committed  "  2«  the  night,"  without  men- 
tioning the  hour,  has  been  held  to  be  sufficient ;  Com.  v.  Williams,  2  Cush. 
582  (under  statute);   People  v.  Burgess,  35  Cal.  115;    though  at  connnon  law 

is 


(2) 


GENERAL    FRAME    OF   INDICTMENT. 


the  practice  is  to  aver  the  hour.  1  Hale,  549  ;  R.  v.  Waddlnprton,  2  East  P.  C. 
513;  2  Hawk.  c.  25,  ss.  76,  77;  State  v.  G.  S.,  1  Tyler,  295.  And  see  Wh. 
Cr.  L.  8th  ed.  §  817  ;  Wh.  Cr.  Ev.  §  106. 

When  the  time  has  been  once  named  with  certainty,  it  is  afterwards  sufficient 
to  refer  to  it  by  the  words  then  and  there,  which  have  the  same  effect  as  if  the 
day  and  year  were  actually  repeated.  2  Hale,  178;  2  Stra.  901;  Keil.  100;  2 
Hawk,  cl  23,  s.  88;  c.  25,  s.  78;  Bac.  Ab.  Indict.  G.  4;  Williams,  J.,  Indict. 
iv.  ;  Comyns,  480;  Stout  ik  Com.,  11  S.  &  R.  177;  State  v.  Cotton,  4  Foster, 
143  ;  State  v.  Bailey,  21  Mo.  484  ;  State  v.  Williams,  4  Ind.  235  ;  State  i'.  Reid, 
20  Iowa,  413.  The  mei'e  conjunction  and  without  adding  then  and  there  will 
be  insufficient  to  make  an  adequate  independent  averment.  2  Hale,  173  ;  Dyer, 
69  ;  2  Hawk.  c.  23,  s.  88;  Cro.  C.  C.  35;  1  East  P.  C.  c.  5,  s.  112;  Wh.  Cr.  L. 
8th  ed.  §  529.  See  State  v.  Johnson,  12  Minn.  476;  State  v.  Slack,  30  Tex. 
354.  Though  see  Com.  i\  Bugbee,  4  Gray,  206  ;  Resp.  v.  Honeyman,  2  Dall. 
228;  State  v.  Price,  6  Halst.  210. 

If  the  words  "  then  and  there"  precede  every  material  allegation,  it  is  suffi- 
cient, though  these  words  may  not  precede  the  conclusions  drawn  from  the  facts. 

1  Leach,  529  ;  Dougl.  412  ;  State  v.  Johnson,  1  Walker,  Miss.  R.  392. 

If  the  indictment  allege  that  the  defendant  feloniously  and  of  malice  afore- 
thought made  an  assault,  and  with  a  certain  sword,  etc.,  then  and  there  struck, 
the  previous  omission  will  not  be  material,  for  the  words  felonioudy  and  loith 
malice  aj'orethouf/ht,  previously  connected  with  the  assault,  are  by  the  words 
then  and  there  adecpiately  applied  to  the  murder.  See  4  Co.  41,  b;  Dyer,  G9, 
a;  1  East  P.  C.  346  ;  1  Ch.  C.  L.  221  ;  Wh.  Cr.  L.  8th  ed.  §  529. 

In  an  indictment  for  breaking  a  house  with  intent  to  ravish,  "  then  and  there" 
is  not  necessary  to  tiie  intent.     Com.  v.  Doharty,  10  Cush.  52. 

In  jNIassachusetts  it  is  held  that  an  indictment  which  avers  that  the  defendant, 
at  a  time  and  place  named,  feloniously  assaulted  A.  B.,  and,  being  then  and 
there  armed  with  a  dangerous  weapon,  did  actually  strike  him  on  his  head  Avith 
said  weapon,  is  sufficient,  without  repeating  the  words  "then  and  there"  before 
the  words  "did  actually  strike ;"  the  court  rejecting  the  English  rule  above 
stated  requiring  such  repetition.  Com.  v.  Bugbee,  4  Gray,  20G.  The  same 
inqjlication  exists  as  to  the  averment  of  wounding.  State  v.  Freeman,  21  Mo. 
481  ;  State  v.  Bailey,  21  Mo.  484.  This  is  established  in  Indiana  by  statute. 
Thayer  v.  State,  11  Ind.  287. 

In  North  Carolina  it  has  been  held  that  an  indictment  may  contain  enough  to 
induce  the  court  to  jiroceed  to  judgment,  if  the  time  and  place  of  making  the 
assault  be  set  foi'th,  though  they  be  not  repeated  as  to  the  final  blow.  State 
V.  Cherry,  3  Murph.  7.     See  Jackson  v.  People,  18  111.  264. 

"Then  and  there"  is  insufficient  where  it  is  necessary  to  prove,  as  part  of  the 
description  of  the  offence,  an  act  at  some  specific  portion  of  a  day,  as  where 
it  is  necessary  to  aver  the  possession  of  ten  or  more  counterfeit  bills  at  one  time. 
Edwards  v.  Com.,  19  Pick.  124. 

The  word  being  (^existens),  unless  necessarily  connected  with  some  other 
matter,    is  not  sufficiently   definite.     Bac.    Ab.   Indict.   G.    1;   Cro.  Jac.    639; 

2  Lord  Raymond,  1467,  1468  ;  2  Rol.  Rep.  225;  Com.  Dig.  Indict.  G.  2.  It  is 
otherwise  when  part  of  an  independent  adequate  averment.  R.  v.  Boyall,  2 
Burr.  832. 

Neither  "Instantly"  (1  Leach,  4th  ed.  529  ;  Chitty  C.  L.  221  ;  R.  v.  Brown- 
low,  11  A.  &  E.  119;  Lester  v.  State,  9  Mo.  666  ;  State  v.  Lakey,  65  Mo.  217  ; 
State  V.  Testerman,  68  Mo.  408.  See  Com.  v.  Ailstock,  3  Grat.  650  ;  State  v. 
Cherry,  3  Murph.  7),  nor  "immediately"  (R.  v.  Francis,  Cunning.  275;  2 
Strange,  1015),  nor  "whilst"  (R.  v.  Pelham,  8  Q.  B.  959),  can  supply  the 
place  of  "then  and  there." 

Where  the  antecedent  averment  is  In  any  way  ambiguous  as  to  time  or 
place,  the  reference  "  then  and  there"  is  defective.  R.  v.  Devett,  8  C.  &  P. 
639;    State  v.  Jackson,  39   Me.  291  ;   Edwards  u.    Com.  19  Pick.  124;   Com.  v. 

16 


time;  place.  (2) 

Butterick,  100  Mass.  12;  Com.  v.  Goldstein,  114  Mass.  272;  Storrs  f.  State, 
3  Mo.  9  ;  Jane  v.  State,  3  Mo.  61  ;  State  v.  Hayes.  24  Mo.  358. 

If  the  fact  be  stated,  as  to  the  time  or  place,  with  repugnancy  dr  uncertainty, 
the  indictment  will  be  bad.  See  JetTries  v.  Com.,  12  Allen,  145;  Com.  v.  Grif- 
fin, 3  Cush.  523  ;  People  r.  Mather,  10  Mo.  291  ;  State  u.  Hendricks,  Con. 
(N.  C.)  369  ;  Hutchinson  v.  State,  62  Ind.  556  ;  Serpentine  v.  State,  1  How. 
(Miss.)  260;  McMath  v.  State,  55  Ga.  303.  And  an  indictment  alleging  the 
offence  to  have  been  committed  on  an  impossible  day  (People  v.  Matlier,  4 
Wend.  229;  ]\Iarkley  v.  State,  10  Mo.  291),  or  a  day 'subsecpient  to  the  finding 
of  the  bill  (State  I'.'Munger,  15  Vt.  291;  State  v.  Litch,  33  Vt.  67;  Com.  v. 
Doyle,  110  JNIass.  103  ;  Penns.  v.  McKee,  Add.  36  ;  Jacobs  v.  Com.,  5  S.  &  R. 
316;  State  v.  Noland,  29  Ind.  212;  State  v.  Davidson,  36  Te.\.  325;  see  Wh. 
Cr.  PI.  &  Pr.  §  120),  is  defective.  But  an  indictment  may  be  found  for  a 
crime  committed  after  the  term  commenced  to  which  it  is  returned.  Allen  v. 
State,  5  AVis.   329. 

In  perjury  and  cognate  cases,  when  the  time  of  the  alleged  false  oath  enters 
into  the  essence  of  the  offence,  and  is  to  be  shown  by  the  records  of  the  court 
where  the  oath  was  taken,  a  variance  in  the  day  is  fatal.  Wh.  Cr.  L.  8th  ed. 
§  103  a;  Green  v.  Rennett,  1  T.  R.  656  ;  Freeman  y.  Jacob,  4  Camp.  209  ;  Pope 
V.  Foster,  4  T.  R.  590;  Woodford  v.  Ashlev,  11  East,  508;  Restall  v.  Stratton, 
1  H.  Bl.  49  ;  U.  S.  V.  M'Neal,  1  Gallis.  387  ;  U.  S.  v.  Bowman,  2  Wash.  C.  C. 
R.  328;   Com.  v.  Monahan,  9  Gray,  119. 

Dates  of  hills  of  exchange,  and  other  loritten  instruments,  must  be  truly  stated 
when  necessarily  set  out.     Wh.  Cr.  Ev.  §  103  a;  Archbold'sC.  P.  9th  ed.  §  90. 

Deeds  must  be  pleaded  either  according  to  the  date  they  bear,  or  to  the  day  on 
which  they  were  delivered.     Ibid. 

Where  a  time  is  limited  by  general  statute  for  preferring  an  indictment,  the 
time  laid  should  ordinarilv  appear  to  be  within  the  time  so  limited.  Wh.  Cr. 
Ev.  §  105.  See  R.  v.  Brown,  M.  &  M.  163  ;  U.  S.  v.  Winslow,  3  Sawy.  337  ; 
State  V.  Hobbs,  39  Me.  212;  State  v.  J.  P.,  1  Tyler,  283;  State  v.  Rust,  8 
Black.  195  ;  State  v.  Robinson,  9  Foster,  274  ;  Hatwood  i'.  State,  18  Ind.  492; 
Peoples.  Gregory,  30  Mich.  371;  People  v.  Miller,  12  Cal.  291;  McLane  v. 
State,  4  Ga.  335  ;"'Shelton  v.  State,  1  St.  c^  P.  208  ;  State  r.  McGrath,  19  Mo.  678. 

(h)  Vi  et  armis.  This  allegation  (unless  in  indictments  for  forcible  entry)  is 
no  longer  essential.     Wh.  Cr.  PI.  &  Pr.  §  271. 

(«■)  As  to  conflict  in  cases  of  venue,  see  Wh.  Cr.  L.  8th  ed.  §§  269  et  seq. ;  and 
as  to  whether  the  venue  is  to  be  in  the  place  where  the  offence  was  consummated, 
or  in  the  place  where  the  offender  was  at  the  consummation,  see,  particularly, 
Ibid.,  §  284,  note.     As  to  change  of  venue,  see  AVh.  Cr.  PI.  &  Pr.  §  602. 

In  England,  it  is  now  enough  to  aver  the  county  as  the  place  of  the  commission. 
Stat.  6  Geo.  4  ;  14  &  15  Vict.  In  the  United  States,  the  latter  practice  Is  gene- 
rally accepted  wherever  the  county  Is  conterminous  with  the  jurisdiction  of  the 
court.  Wh.  Cr.  PI.  &  Pr.  §  146  ;  Wh.  Cr,  Ev.  §  107  ;  People  v.  Lafuente,  6 
Cal.  202.  That  "county"  is  necessary  see  People  o.  Gregory,  30  Mich.  371. 
Though  It  is  otherwise  when  the  jurisdiction  of  the  court  embraces  but  a  fraction 
of  the  county.  Wh.  Cr.  PI.  &  Pr.  §§  141-2;  2  Hale,  P.  C.  166;  McBride 
r.  State,  10  Humph.  615.  So,  mutatis  mutandis,  as  to  towns.  Com.  v.  Spring- 
field, 7  Mass.  9. 

But  as  a  rule,  it  is  sufficient  if  the  place  stated  correspond  with  tlie  jurisdiction 
of  the  court.  R.  v.  Stanbury,  L.  &  C.  128  ;  People  v.  Barrett,  1  .lohnson  R. 
66  ;  State  v.  G.  S.,  1  Tyler,  295;  State  v.  Jones,  4  Halsted,  357.  This  may  be 
"county,"  "city,"  or  "town,"  wlienever  the  place  described  constitutes  a 
distinctive  jurisdiction  recognized  as  such  by  the  law. 

In  several  jurisdictions,  by  statute,  when  an  olFence  is  committed  near  the 
boundary  line  between  two  counties,  it  may  be  averred  to  be  in  either  county. 
People  V.  Davis,  56  N.  Y.  95  ;  Wh.  Cr.  L.  8th  ed.  §  290. 

The  jurisdiction  of  the  federal  courts,  where  crimes  have  been  committed  at  sea 
or  abroad,  is  discussed  at  large  in  anotlier  work.     Wh.  Cr.  L.  8th  ed.  §;?  269  et  seq. 

VOL.  I.— 2  17 


(2)  GENERAL   FRAME    OF   INDICTMENT. 

In  such  cases  the  trial  of  the  ofTciice  is,  by  Act  of  April  30,  1 790,  to  be  "  in  the 
district -where  the  olfcnder  is  ap])rehended,  or  into  which  he  may  tirstbe  brought." 
For  j)ractice  see  U.  S.  ;;.  Arwo,  19  Wall.  486;  U.  S.  v.  Anderson,  8  Keporter 
(1879),  677. 

Where  an  offence  is  committed  within  a  State  by  means  of  an  agent,  tlie 
employer  is  guilty  as  a  principal,  justiciable  in  such  State,  though  he  did  not 
personally  act  in  that  State,  and  at  the  time  the  offence  was  committed  was  in 
another  State.     See  Wh.  Cr.  L.,  8th  ed.  §§  278  et  scq.,  282,  284. 

Where  an  offence  is  committed  within  the  county  of  A.,  and  after  the  com- 
mission of  the  ofl'ence  the  county  is  di^-ided,  and  the  part  of  the  county  in  which 
the  offence  was  committed  is  created  a  new  county  called  B.,  the  latter  county 
has  jurisdiction  over  the  offence.  State  v.  Jones,  4  Halst.  357  ;  Searcy  v.  State, 
4  Tex.  450.  See  U.  S.  v.  Dawson,  15  How.  U.  S.  467;  State  v.  Jackson,  39 
Me.  291  ;  State  v.  Fish,  4  Ired.  219.  Wh.  Cr.  PL  &  Pr.  §  147.  As  dif- 
fering from  text  see  INIcElroy  v.  State,  13  Ark.  708.  In  such  case,  however,  the 
indictment  mav  charge  the  perpetration  in  the  former  county  while  the  trial  is  in 
the  latter.     Jordan  v.  State,  22  Ga.  545  ;  McElroy  v.  State,  13  Ark.  708. 

Where  there  are  distinct  judicial  districts  in  the  county,  it  is  not  sufhcient  that 
the  indictment  names  the  county.  State  v.  Adams,  2  Battle's  Dig.  729  ;  Com. 
V.  Springfield,  7  Mass.  9.  And  so  in  all  cases  where  the  jurisdiction  is  less  than 
the  county.    Taylor  v.  Com.  2  Va.  Cas.  94  ;  McBride  v.  State,  10  Humph.  615. 

The  court  will  take  judicial  notice  of  statutory  subdivisions  of  counties.  Ibid.  ; 
Com.  r.  Springfield,  7  IMass.  9  ;  State  v.  Powers,  25  Conn.  48.  But  it  is  said 
that  averring  a  place  to  be  at  "  W.,"  and  not  at  the  "  city"  or  "  town"  of  "  W.," 
is  not  enough.  Com.  v.  Barnard,  6  Gray,  488.  See,  however.  Tower  v.  Com., 
1 11  Mass.  117,  where  it  was  held  that  it  was  enough,  in  error,  to  aver  the  toitnt  ; 
the  court  taking  notice  that  the  town  was  in  a  particular  county.  Compare  com- 
ments in  Heard's  Pleading,  81. 

W^here  the  caption  gives  the  name  of  the  State,  it  need  not  be  repeated  in  the 
indictment.  Com.  v.  Quin,  5  Gray,  478.  And,  generally,  as  the  name  of  the 
State  is  assumed,  in  all  the  proceedings,  it  need  not  be  given  in  the  indictment. 
State  V.  Wentworth,  37  N.  H.  196  ;   State  v.  Lane,  4  Ired.  113. 

Of  transitory  offences,  as  they  are  called  (e.  g.  offences  of  which  the  object 
of  the  offence  is  not  necessarily  attached  to  a  particular  spot),  a  variance  as  to 
specification  of  place  is  not  fatal  il"  jurisdiction  be  correctl}-  given.  In  tlie  city 
of  New  York,  the  practice  is  to  charge  the  ward  as  part  of  the  venue  :  thus  : 
"  In  the  First  Ward  of  the  city  of  New  York  ;"  in  New  Orleans,  to  name  the 
parish.  The  same  ])ractice  obtains  elsewhere.  If,  however,  the  offence  is  shown 
to  be  within  the  jurisdiction  of  the  court,  the  special  place  averred,  if  unessen- 
tial,  need  not,  when  the  offence  is  transitory,  be  proved.  2  Hale,  179,  244, 
245;  4  Bla.  Com.  306  ;  2  Hawk.  c.  25,  s.  84;  c.  46,  ss.  181,  182;  1  East  P. 
C.  125;  Holt,  534;  R.  v.  Woodward,  1  Mood.  C.  C.  323;  Com.  v.  Gillon,  2 
Allen,  502;  Carlisle  v.  State,  32  Ind.  55;  Heikes  v.  Com.,  26  Penn.  St.  531  ; 
Wh.  Cr.  Ev.  §  109. 

But  where  the  case  is  stated  by  way  of  local  description  and  not  as  a  venue 
merely,  a  variance  in  what  are  called  local  offences  (e.  g.  where  the  object  is 
necessarily  attached  to  a  place)  is  fatal.  R.  v.  St.  John,  9  C.  &  P.  40  ;  R.  v. 
Redley,  R.  &  M.  515  ;  State  v.  Cotton,  4  Foster  (N.  H.),  143  ;  People  v.  Slater, 
5  Hill'N.  Y.  R.  401  ;  Moore  v.  State,  12  Ohio  St.  387  ;  State  v.  Crogan,  8  Iowa, 
523  ;  Norris  v.  State,  3  Greene,  Iowa,  513  ;  Chute  v.  State,  19  Minn.  271  ; 
Grimme  v.  Com.,  5  B.  Mon.  263;  Wh.  Cr.  Ev.  §  109.  Under  the  same  head 
are  to  be  included  injuries  to  machinery  permanently  fixed,  and  buildings  :  R. 
I'.  Richards,  1  J\I.  &  R.  1  77  ;  nuisances,  when  emanating  from  local  sites  ;  Com.  v. 
Heffron,  102  Mass.  148;  and  houses  of  ill-fame;  State  v.  Nixon,  18  Vt.  70. 
Such  speclffcations,  though  unnecessary,  must  be  proved.  Wh.  Cr.  Ev.  §  109. 
It  is  sufficient  if  the  place  be  averred  simply  as  "the  county  aforesaid,"  when 
the  county  is  named  in  tlie  caption,  or  in  the  commencement,  for  which  the  grand 
jurors  were  sworn.     Com.  v.  Edwards,   4  Gra-\-,  1  ;   State  v.  Smith,  5  Harring. 

18 


PLACE    AND   VENUE  (2) 

490;  Winfrard  v.  State,  13  Ga.  396  ;  State  v.  Ames,  10  Mo.  743;  State  v.  Simon, 
50  Mo.  370  ;  State  v.  Shall,  3  Head  (Tenn.),  42  ;  Evarts  v.  State,  48  Iiul.  422; 
Noe  V.  People,  39  111.  96.  See,  to  same  effect.  State  v.  Baker,  50  Me.  45  ;  State 
V.  Roberts,  26  Me.  263  ;  State  v.  Conley,  39  Me.  78;  Haskins  v.  People,  16  N. 
Y.  344;  State  v.  Lamon,  3  Hawks,  175  ;  State  v.  Bell,  3  Ired.  506  ;  State  v. 
Tolever,  5  Ired.  452.  Compare  1  Wms.  Saund.  308.  It  is  otherwise  when  two 
counties  are  previously  named.     State  v.  McCracken,  20  Mo.  411. 

Even  "  county"  may  be  left  out  in  the  statement  of  place,  when  it  can  be 
presumed  from  prior  averments.  See  CoYn.  v.  Cummings,  6  Gray,  487.  State 
V.  Walter,  14  Kans.  375.  Where  it  was  alleged  that  the  defendant  broke  and 
entered  "  the  city  hall  of  the  city  of  Charlestown  ;"  this  was  held  a  sufficient 
averment  that  the  property  of  the  building  alleged  to  be  broken  and  entered  is 
in  the  city  of  Charlestown.     Com.  v.  Williams,  2  Cush.  583. 

"  County"  or  "town"  or  *'city,"  however,  must  somewhere  appear;  and  it 
is  not  enough  to  aver  the  offence  to  have  been  committed  in  C.  The  indictment 
must  say,  either  directlj^  or  by  reference  to  the  caption,  that  C  is  a  town  or  city 
or  county.     Com.  v.  Barnard,  6  Gray,  488.     Wb.  Cr.  PI.  &  Pr.  §  142. 

But  an  indictment  for  burning  a  barn  situate  at  a  certain  place,  which  was 
■within  the  jurisdiction  of  the  court,  and  alleged  to  be  "  within  the  curtilage  of 
the  dwelling-house  of  A.,"  need  not  also  aver  that  the  dwelling-house  was  at 
that  place.     Commonwealth  v.  Barney,  10  Cush.  480. 

The  effect  of  "then  and  there"  has  been  already  considered  In  the  note  to  the 
allegation  of  time. 

A  change  of  local  title,  when  enacted  by  the  legislature,  must  be  followed  by 
the  pleader.  State  v.  Fish,  4  Ired.  219;  and  authorities  on  prior  page.  It  has, 
however,  been  held  not  error  to  describe  a  county  within  which  the  offence  was 
committed  by  the  name  belonging  to  it  at  the  time  of  trial,  even  though  it  went 
by  another  name  at  the  time  when  the  act  was  committed.  McElroy  v.  State, 
8  Eng.  (13  Ark.)  708  ;  and  see  Jordan  v.  State,  22  Ga.  545. 

Where  a  fine  is  payahle,  or  penalty  is  special,  to  a  subdivision  of  county,  it 
has  been  said  that  the  pleading  should  aver  such  subdivision,  so  as  to  guide  the 
court  in  the  application  of  the  fine  or  penalty;  Botto  i'.  State,  26  Miss.  108. 
See  Legori  v.  State,  8  Sm.  &  M.  697  ;  State  v.  Smith,  5  Harring.  490,  and  cases 
cited  supra ;  though  this  has  been  doubted  in  cases  where  the  court  can  ascertain 
the  place  of  the  defendant's  residence  otherwise  than  by  the  verdict  of  the  jury. 
Duncan  v.  Com.,  4  S.  &  R.  449. 

In.  larceny,  the  venue  may  be  laid  in  any  county  in  which  the  thief  was  pos- 
sessed of  the  stolen  goods.  See  Wh.  Cr.  L.  8th  ed.  §§  391,  930;  and  see 
R.  V.  Peel,  9  Cox  C.  C.  220;   Wh.  Cr.  Ev.  §  HI. 

Where  an  indictment  omits  to  lay  a  venue  of  the  offence  charged,  it  is  a  fatal 
defect,  on  motion  to  quash,  or  in  arrest  of  judgment.  Wh.  Cr.  PI.  &  Pr.  §  385  ; 
Thompson  v.  State,  51  Miss.  353  ;  Searcy  v.  State,  4  Tex.  450  ;  Morgan  v.  State, 
13  Flor.  671. 

In  another  work  the  proof  of  place  is  discussed  at  large  ;  and  it  is  shown  that 
the  place  of  the  offence  must  be  proved  to  be  within  the  jurisdiction  of  the 
court  (Wh.  Cr.  Ev.  §  107),  though  the  proof  of  this  is  inferential.  Ibid.  §  lOS. 
It  will  also  be  seen  that  when  a  place  is  stated  as  matter  of  description,  a  vari- 
ance may  be  fatal.  Ibid.  §  109.  The  venue  in  homicide  may  be  placed  by 
statute  in  the  place  of  death  (Ibid.  §  110;  see  Wh.  Cr.  L.  8th  ed.  §  292)  ;  and 
that  of  conspiracy  in  the  place  of  any  overt  act.  Wh.  Cr.  Ev.  §  111  ;  Wh.  Cr. 
L.  8th  ed.  §  1397  ;  Inf.  607,  note. 

[j)  The  statute  of  additions  extends  to  the  defendant  alone,  and  does  not  at 
all  affect  the  description  eitiier  of  the  j)rosecutor,  or  any  other  indidlvuals  whom 
it  maybe  necessary  to  name.  2  Leach,  861  ;  2  Hale,  182;  Burn,  J.,  Indict- 
ment; Bac.  Ab.  Indictment,  G.  2  ;  R.  r.  Graham, 2  Leach,  547;  R.  v.  Ogilvie, 
2  C.  &  P.  230;  Com.  v.  Varney,  10  Cush.  402;  though  see  R.  r.  Deeley,  1 
Mood.  C.  C.  303.  Tlie  name  thus  given  must  be  the  name  by  which  the  person 
is  generally  known.     Wh.  Cr.  PI.  &  Pr.  §§116,  119;   R.  v.  Norton,  Rus.  &  Ry. 


(2) 


GENERAL   FRAME    OF   INDICTMENT. 


510  ;  R.  V.  Berriman,  5  C.  &  P.  601  ;  R.  v.  Williams,  7  C.  &.  P.  298  ;  State 
V.  Haddock,  2  Hayw.  162  ;  Walters  v.  People,  6  Park.  C.  R.  16.  Christian  as 
well  as  surname  must,  if  known,  be  given.  Morningstar  v.  State,  52  Ala.  405  ; 
State  V.  Taylor,  15  Kans.  420  ;  Collins  v.  State,  43  Tex.  577.  When  an  addition 
is  stated  descriptively,  a  variance  may  be  fatal.  R.  v.  Deeley,  1  Mood.  C.  C. 
303  ;   4  C.  &  P.  579  ;  Wh.  Cr.  Ev.  §  100. 

When  the  name  of  a  corporation  is  given,  the  corporate  title  must  be  strictly 
pursued,  unless  specification  is  made  unnecessarily  by  local  statute.  AVh.  Cr.  L. 
8th  ed.  §  941  ;  R.  v.  Birminrrham  R.  R.,  3  Q.  B.  223  ;  State  v.  Vt.  R.  R.,  28 
Vt.  583  ;  Fisher  v.  State,  40  N.  J.  L.  169  ;  McGary  v.  Pet)pie,  45  N.  Y.  153  ; 
Litho-ow  V.  State,  2  Va.  Cas.  296  ;  Smith  i'.  State,  28  Ind.  321  ;  Wallace  v. 
People,  63  111.  481. 

Wliether  at  common  law,  in  an  indictment  for  stealing  the  goods  of  a  corpora- 
tion, it  is  requisite  to  aver  that  the  corpoj-ation  was  incorporated,  has  been  much 
disputed.  Tiiat  it  is  necessary  is  ruled  in  State  y.  Mead,  27  Vt.  722;  Cohen  v. 
People,  5  Parker  C.  R.  330  ;  Wallace  v.  People,  63  111.  451  ;  People  v.  Schwartz, 
32  Cal.  160.  That  it  is  unnecessary,  unless  made  so  by  statute,  is  ruled  in  R.  v. 
Patrick,  1  Leach,  253;  Com.  v.  Phillipburg,  10  Mass.  70;  Com.  v.  Dedham,  16 
Mass.  141  ;  People  i'.  McCloskey,  5  Parker  C.  C.  57,  334;  People  v.  Jackson, 
8  Barb.  63  7  ;  McLaughlin  v.  Com.,  4  Rawle,  464  ;  Fisher  v.  State,  40  N.  J.  L. 
169  ;  Johnson  v.  State,  65  Ind.  204.  See  Wh.  Cr.  L.  8th  ed.  §  716.  The  ques- 
tion depends  upon  whether  the  court  takes  judicial  notice  of  the  charter.  Wh. 
on  Ev.  §§292-3. 

Unknown. — Where  a  third  party  is  unknown,  he  may  be  described  as  a  "cer- 
tain person  to  the  jurors  aforesaid  unknown."  2  Hawk.  c.  25,  s.  71  ;  2  East  P. 
C.  651,  781;  Cro.  C.C.  36;  Plowd.  85,  b ;  Dyer,  97,  286  ;  2  Hale,  181  ;  Com. 
V.  Tompson,  2  Cush.  551;  Com.  v.  Hill,  11  Cush.  137;  Com.  v.  Stoddard,  9 
Allen,  280;  Goodrich  v.  People,  3  Parker  C.  11.  622;  Com.  v.  Sherman,  13 
Allen,  248;  AVillis  v.  People,  1  Scam.  399;  State  v.  Irvin,  5  Blackf.  343; 
Brooster  v.  State,  15  Ind.  190;  State  v.  McConkey,  20  Iowa,  574;  State  v. 
Bryant,  14  Mo.  340.  A  Christian  name  may  be  averred  to  be  unknown.  Bry- 
ant V.  State,  36  Ala.  270;  Smith  v.  Bayonne,  23  l^a.  An.  68.  An  averment  of 
"  unknown"  will  stand,  if  the  party  Avas  at  the  time  of  the  indictment  unknown 
to  the  grand  jury,  though  he  became  known  afterwards.  2  East  P.  C.  651  ;  Stra. 
186,  49  7  ;  Com.  v.  Hendrie,  2  Gray,  503  ;  Com.  v.  Intoxicating  Liquors,  116  Mass. 
21.  As  to  vendee  in  liquor  sales,  see  Wh.  Cr.  L.  8th  ed.  §  151 1  ;  as  to  deceased 
persons,  see  R.  v.  Campbell,  1  Car.  &  K.  82  ;  State  v.  Haddock,  2  Hayw.  348  ; 
Reed  v.  State,  16  Ark.  499  ;  as  to  owners  of  stolen  property,  see  2  East  P.  C. 
651,  781  ;  1  Ch.  C.  L.  212  ;  1  Hale,  181  ;  2  B.  &  Aid.  580  ;  Com.  v.  Morse,  14 
Mass.  217  ;  Com.  v.  Manley,  12  Pick.  173  ;  Wh.  Cr.  L.  8th  ed.  §  949.  To  sup- 
port the  description  of  "unknown,"  remarks  Mr.  Sergeant  Talfourd,  "it  must 
appear  that  the  name  could  not  well  have  been  supposed  to  have  been  known  to 
the  grand  jury."  R.  v.  Stroud,  1  C.  &  K.  187.  A  bastard  is  sufficiently  iden- 
tified by  showing  the  name  of  its  parent,  thus:  "  A  certain  illegitimate  male 
child  then  lately  born  of  the  body  of  A.  B.  (the  mother)."  R.  v.  Hogg,  2  M. 
&  Rob.  380.  See  R.  v.  Hicks,  2  Ibid.  302,  where  an  indictment  for  child-mur- 
der was  held  bad  for  not  stating  the  name  of  the  child,  or  accounting  for  its  omis- 
sion. A  bastard  must  not  be  described  b^-  his  mother's  name  till  he  has  ac(juired 
it  by  reputation.  R.  v.  Clark,  R.  &  R.  358  ;  AVakefield  v.  JMackey,  1  Phill.  R. 
134,  contra.  A  bastard  child,  six  weeks  old,  who  was  baptized  on  a  Sunday, 
and  down  to  the  following  Tuesday  had  been  called  by  its  name  of  baptism  and 
mother's  surname,  was  held  by  Erskine,  J.,  to  be  properly  described  by  both 
those  names  in  an  indictment  for  its  murder;  R.  v.  Evans,  8  C.  &  P.  765;  but 
where  a  bastard  was  baptized  "  Eliza,"  without  mentioning  any  surname  at  the 
ceremony,  and  was  afterwards,  at  three  years  old,  sullbcated  by  the  prisoner,  an 
indictment,  styling  it  "Eliza  ]Vaters,"  that  being  the  mother's  surname,  was  held 
bad  by  all  the  judges,  as  the  deceased  had  not  acquired  the  name  of  Waters  by 
reputation.     R.  v.  Waters,   1  Mood.  C.  C.  457  ;   2  C.  &  K.  862.     (N.  B.     No 

20 


NAMES    OF   THIRD    PARTIES.  (2) 

baptismal  register,  or  copy  of  it,  was  produced  at  either  trial.  Semh. :  "  Eliza" 
would  have  sufficed.  See  R.  v.  Stroud,  1  C.  &  K.  187,  and  cases  collected  ; 
Williams  v.  Bryant,  5  M.  &  W.  44  7.)  In  the  previous  case  of  R.  v.  Clark,  R. 
&  R.  358,  an  indictment  stated  the  murder  of  "  George  Lakemnn  Clark,  a  base- 
born  infant  male  child,  aged  three  weeks,"  by  the  prisoner,  its  mother.  The 
child  had  been  christened  George  Laleman,  being  the  name  of  its  reputed  father, 
and  was  called  so,  and  not  by  any  other  name  known  to  the  witnesses.  Its 
mother  called  it  so.  There  was  no  evidence  that  it  had  been  called  by  or  ob- 
tained its  mother's  n^ie  of  Clark.  The  court  held  the  name  Clark  incorrect, 
and  as  nothing  but  the  name  identified  the  child,  the  conviction  was  held  bad. 
See  also  R.  v.  Sheen,  2  C.  &  P.  634.  However,  in  R.  v.  Bliss,  8  C.  &  P.  7  73, 
an  indictment  against  a  man-ied  woman  for  murder  of  a  legitimate  child,  which 
stated  "  that  she,  in  and  upon  a  certain  infant  male  child  offender  gears,  to  wit,  of 
the  age  of  six  weeks,  and  not  baptized,  feloniously  and  wilfully,  etc.,  did  make 
an  assault,"  etc.,  was  held  insufficient  by  all  the  judges,  as  it  neither  stated  the 
child's  name,  nor  that  it  was  "to  the  jurors  unknowa."  It  is,  however,  suffi- 
cient to  describe  the  child  "  as  a  certain  male  child,  etc.,  of  tender  age,  that  is  to 
say,  about  the  age  of  six  weeks,  and  not  baptized,  born  of  the  body  of  C.  B." 
See  2  C.  &  P.  635,  n.;  R.  'v.  AVillis,  1  C.  &  K.  722  ;  see  also  R.  t\  Sheen,  2  C. 
&  P.  634;  Dickins,  Q.  S.  6th  ed.  213. 

Junior  and  Senior. — As  to  defendants,  the  law  on  this  point  has  been  already 
noticed.  In  England,  it  is  said  that  where  the  party  injured  has  a  mother  or 
father  of  the  same  name,  it  is  better  to  style  the  prosecutor  "  tlie  younger,"  as  it 
may  be  presumed  that  the  parent  is  the  party  mc^ant ;  for  George  Johnson  means 
G.  J.  the  elder,  unless  the  contrary  is  expressed.  Singleton  v.  Johnson,  9  ]M.  & 
W.  67.  But  this  was  held  immaterial  when  it  is  sufficiently  proved  who  Eliza- 
beth Edwards,  the  party  described  assaulted,  was,  viz.,  the  daughter  of  another 
Elizabeth  Edwards.  R.  v.  Peace,  3  B.  &  Aid.  579.  And  the  question  is  whether 
the  name  specified  is  that  by  wliich  the  party  was  accustomed  to  go. 

Where  the  defendant  was  indicted  for  the  murder  of  her  bastard  child,  whose 
name  was  to  the  jurors  unknown,  and  it  appeared  that  the  child  had  not  been 
baptized,  but  that  the  mother  had  said  she  would  like  to  have  it  called  ^Vlary  Ann, 
and  little  Mary,  the  indictment  was  held  good.  R.  v.  Smith,  1  Mood.  C.  C.  402  ; 
6  C.  &  P.  15l'. 

An  indictment  for  the  murder  of  "a  certain  Wyandott  Indian,  whose  name 
is  unknown  to  the  grand  jury,"  is  valid,  and  sufficiently  descriptive  of  the  de- 
ceased, without  an  allegation  that  the  words  "  A\'^yandott  Indian"  mean  a  human 
being.     Reed  v.  State,  16  Ark.  499. 

If  it  appear  on  the  trial  tliat  tlie  name,  alleged  to  have  been  unknown,  was 
actually  known  to  the  grand  jury,  the  variance  is  fatal.  2  East  P.  C.  561,  781  ; 
3  Camp.  265,  note;  THale,  5l"2;  2  Hawk.  c.  25,  s.  71 ;  2  Leacli,  578;  R.  v. 
Robinson,  1  Holt,  595;  R.  v.  Stroud,  2  Mood.  270;  Com.  v.  Sherman,  13 
Allen,  249;  Com.  i7.  Glover,  111  Mass.  401;  State  y.  Wilson,  30  Conn.  500; 
White  V.  State,  35  N.  Y.  465.  See  Buck  v.  State,  1  Ohio  St.  61  ;  Blodgett  v. 
State,  3  Ind.  403  ;  Jorasco  v.  State,  6  Tex.  Ap.  283  ;  Whart.  Crim.  Ev.  §  97. 
(As  to  unknown  co-conspirators,  see  AV'h.  Cr.  L.  8th  ed.  §§  1393,  1511.)  Dis- 
covery of  the  name  std)sequentlg  to  the  finding  of  the  bill,  however,  is  no  ground 
for  acquittal.  Wh.  Cr.  Ev.  §  97;  R.  v.  Campbell,  1  C.  &  K.  82;  R.  v. 
Smith,  1  Mood.  C.  C.  402;  Com.  v.  Hill,  11  Cush.  137;  Com.  v.  Ilendric, 
2  Gray,  503  ;  Zellers  v.  State,  7  Ind.  659  ;  Cheek  v.  State,  38  Ala.  227  ;  State 
r.  Bryant,  14  Mo.  340.  Nor  will  it  avail  in  arrest  of  judirment.  People  v. 
White,  55  Barb.  606  ;  S.  C,  32  N.  Y.  465;  Wh.  Cr.  Ev.  §  9'?.  But  the  allega- 
tion that  co-defendants  or  principals  are  "unknown"  is  material,  ami  maybe 
traversed  under  the  plea  of  not  guilty.  3  Camp.  264,  265  ;  2  East  P.  C.  781  ; 
Bark  man  t\  State,  8  Eng.  (13  Ark.)  703;  Cameron  v.  State,  Ibid.  712;  Reed 
V.  State,  16  Ark.  499.     See  Wh.  Cr.  Ev.  §  97  ;   Wh.  Cr.  L.  8th  ed.  §  948. 

It  is  not  enough  to  defeat  the  bill,  that  the  same  grand  jury  found  anotlier  bill, 
specifying  the  "person  unknown"  as  "J.  L."     R,  v.  Bush.  11.  &  R.  372.     See 

21 


(2) 


GENERAL   FRAME    OF   INDICTMENT. 


1  Den.  C.  C.  361  ;  Com.  v.  Sherman,  13  Allen,  250.  The  bm-den  is  on  the  de- 
fendant to  prove  knowledge  at  the  time  by  tlic  grand  jury.  Wh.  Cr.  Ev.  §  97  ; 
Com.  V.  Hill,  11  Cash.  137;  Com  y.  Gallagher,  126  Mass.  54.  As  to  liijuor 
cases  see  Wh.  Cr.  L.  8th  ed.  §§  1510,  1511.  Ownership  maybe  laid  in  one 
count  in  ])ersons  unknown,  and  in  other  counts  in  several  ])ersons  tentatively. 

11"  the  allegation  in  which  the  misnomer  appears  is  material,  it  may  be  rejected 
as  surplusage.  Com.  v.  Hunt,  4  Pick.  252;  U.  S.  v.  Howard,  3  Sumner,  12; 
State  V.  Farrow,  48  Ga.  30;  Wh.  Cr.  Ev.  §  138;   Wh.  Cr.  PI.  &  Pr.  §  158. 

An  indictment  lor  forgery  of  a  draft  addressed  to  Messrs.  lirummond  and  Com- 
pany, Charing  Cross,  by  the  name  of  Mr.  Drummond,  Charing  Cross,  without 
stating  the  names  of  Mr.  Drunimond's  ])artners,  was  held  sufficient.  1  Leach, 
248  ;  2  East  P.  C.  990.  But  where  the  pleader  undertakes  to  set  out  the  names 
oi  a  firm,  a  variance  in  the  proof  of  these  names  is  fatal.  Doane  v.  State,  25  Ind. 
495  ;  Wh.  Cr.  Ev.  §§  94  et  seq. 

Initials,  it  seems,  are  a  suAicient  designation  of  the  Christian  name,  if  the 
partv  uses  and  is  known  by  such  initials.  Mead  v.  State,  26  Oh.  St.  505  ;  State 
r.  Bell,  65  N.  C.  313;  State  v.  Brite,  73  N.  C.  26;  Thompson  v.  State,  48 
Ala.  165;  State  v.  Seely,  30  Ark.  162  ;  State  v.  Anderson,  3  Rich.  172;  State 
V.  Black,  31  Tex.  560;  Vandermark  v.  People,  47  111.  122.  As  to  variance  see 
Wh.  Cr.  Ev.  §§  94  et  seq.  In  any  view  this  cannot  be  excepted  to  after  verdict. 
Smith  V.  State,  8  Ohio,  294. 

A  description  by  a  name  acquired  by  reputation  has  been  held  sufficiently  cer- 
tain. Pt.  V.  jSTorton,  R.  &  R.  509  ;  R.  v.  Berriman,  5  C.  &  P.  601  ;  Anon.,  6 
C.  &  P.  408;  State  v.  Bundy,  64  Me.  507  ;  Waters  v.  People,  6  Parker  C.  R. 
16  ;  Com.  v.  Trainor,  123  Mass.  414  ;  State  v.  Gardiner,  AVright's  Ohio  R.  392  ; 
State  V.  Bell,  65  N.  C.  313  ;   McBeth  v.  State,  50  Miss.  81  ;   Wh.  Cr.  Ev.  §  95. 

Should  the  name  proved  be  idetn  sonans  with  that  stateil  in  the  indictment,  and 
different  in  spelling  only,  the  variance  will  be  immaterial.  Wh.  Cr.  Ev.  §  96. 
See  R.  V.  Wilson,  2  C.  &  K.  527;  1  Den.  C.  C.  284;  2  Cox  C.  C.  426;  State 
V.  Bean,  19  Vt.  530;  Point  u.  State,  37  Ala.  148;  State  v.  Lincoln,  17  Wis. 
579.  Thus,  Segrave  for  Seagrave  (Williams  v.  Ogle,  2  Str.  889) ;  McLaughlin 
for  McGlotlin  (McLaughlin  v.  State,  52  Ind.  4  76);  Chambles  for  Chambless 
(Ward  t'.  State,  28  Ala.  53);  Usrey  for  Userry  (Gre.sham  v.  Walker,  10  Ala. 
370)  ;  Authron  for  Autrum  (State  v.  Scurry,  3  Rich.  68)  ;  Benedetto  for  Beni- 
ditto  (Aliibol  v.  Beniditto,  2  Taunt.  401);  Whyneard  for  Winyard,  pronounced 
Wiunyard  (R.  v.  Foster,  R.  &  R.  412)  ;  Petris  for  Retries,  the  pronunciation 
being  the  same  (Petrie  v.  Woodworth,  3  Caines,  219;  See  State  v.  Upton,  1 
Dev.  513)  ;  Hutsonfor  Hudson  (State  v.  Hutson,  15  Mo.  512),  form  no  variance. 
But  it  has  been  decided  that  M'Cann  and  M'Carn  (R.  v.  Tannett,  R.  &  R.  351), 
Shakespear  and  Shakepear  (R.  v.  Shakespear,  10  T.  R.  83),  Tabart  and  Tar- 
bart  (Bingham  v.  Dickie,  5  Taunt.  814),  Shutliff"  and  Shirtllif  (1  Chit.  C.  L. 
216;  3  Chit.  Burn,  341),  Comyns  and  Cummins  (Cruickshank  v.  Comyns,  24 
111.   602),  are  fatal  variances. 

AVhat  is  idem  sonans  is  for  the  jury.  R.  ik  Davis,  2  Den.  C.  C.  231  ;  T.  & 
M.  557  ;  5  Cox  C.  C.  238;  Com.  y.  Donovan,  13  Allen,  571  ;  Com.  y.  Jennings, 
121  Mass.  47.  See  People  v.  Cooke,  6  Park.  C.  R.  31.  See  fully  Wh.  Cr.  Ev. 
§§  94  et  seq. 

In  conclusion,  any  variance  in  sound  in  the  name  of  material  third  parties  is 
fatal  at  common  law,  it  being  the  duty  of  the  Court  to  order  an  accpiittal,  though 
such  ac(juittal  is  no  bar  to  a  second  and  correct  indictment.  Wh.  Cr.  PI.  & 
Pr.  §§116,  119. 

The  court  will  determine  by  inspection  what  is  the  name  as  written  in  the 
indictment.     O'Neil  v.  State,  48  Ga.  6Q. 

Statement  of  the  offence. — It  is  a  general  rule  that  the  special  matter  of  the 
whole  olfence  should  be  set  forth  in  the  indictment  with  such  certainty,  that  the 
offence  may  judicially  appear  to  the  court.  See  U.  S.  v.  Cruikshank,  92  U.  S. 
542;  U.  S.  V.  Simmons,  96  U.  S.  360;  Com.  v.  Perry,  114  Mass.  263;  People 
V.  Taylor,  3  Denio,  91  ;   Biggs  u.  People,  8  Barb.  547  ;   Kit  u.  State,  11  Humph. 

12 


STATEMENT    OF    THE    OFFENCE.  (2) 

1G7;  State  v.  Stiles,  40  Iowa,  148;  State  v.  iMurray,  41  Iowa,  580.  Elustra- 
tions  are  given  in  Wh.  Cr.  PL  &  Pr.  §  151.  When  special  facts  are  an  essential 
part  of  an  offence,  tliey  must  be  set  out. 

Certainty  to  common  intent,  it  is  said,  is  what  is  required  ;  perfect  certainty  is  un- 
attainable, and  the  attempt  to  secure  it  would  in  almost  every  case  lead  to  a  vari- 
ance.   Wh.  Cr.  PL  &  Pr.  §  151  ;  R.  v.  Decley,  4  C.  &  P.  579  ;  1  Mood.  C.  C.  303. 

The  certainty,  in  other  words,  must  be  such,  so  far  as  concerns  the  substance 
of  the  offence,  as  exhibits  the  truth  accordini^  to  its  ordinary  general  acceptation  ; 
not  the  truth  with  jts  differentia  scientifically  and  exhaustively  displayed.  See 
Buller,  J.,  R.  v.  Lyme  Regis,  1  Doug.  159. 

Where  an  act  is  not  in  itself  necessarily  unlawful,  but  becomes  so  by  Its  pecu- 
liar circumstances  and  relations,  all  the  matters  must  be  set  forth  in  which  its 
illegality  consists.  2  Hawk.  c.  25,  s.  57;  Bac.  Ab.  Indictment,  G.  1;  Cowp. 
683  ;  People  v.  jNIartin,  52  Cal.  201.  Thus  an  indictment  for  obstructing  an  offi- 
cer in  the  execution  of  process,  must  show  that  he  was  an  officer  of  the  court  out 
of  which  the  process  issued,  and  the  nature  of  the  official  duty  and  of  the  process. 
R.  V.  Osmer,  5  East,  304.  See  R.  v.  Everett,  8  B.  &  C.  114  ;  State  v.  Burt,  25 
Vt.  3  73  ;  McQuoid  v.  People,  3  Gilman,  7G  ;  Cantrill  v.  People,  Ibid.  356.  An 
indictment,  also,  for  contemptuous  or  disrespectful  words  to  a  magistrate  is  de- 
fective without  showing  that  the  magistrate  was  in  the  execution  of  his  duty  at 
the  time.  R.  v.  Lease,  Andr.  226.  And  so  an  indictment  against  a  public  officer 
for  non-performance  of  a  duty  without  showing  that  he  was  such  an  officer  as  was 
bound  by  law  to  perform  that  particular  duty.     5  T.  R.  623. 

At  the  same  time  it  is  not  necessary,  when  a  minor  offence  is  inclosed  in  a 
greater,  to  introduce  the  averments  showing  the  defendant  to  have  been  guilty  of 
the  greater  otFence,  though  these  should  be  proved  by  the  evidence.  The  de- 
fendant, however,  on  such  an  indictment,  can  be  convicted  only  of  the  minor 
offence.     See  State  v.  Bowling,  10  Humph.  52;  Wh.  Cr.  L.  8th  ed.  §  27. 

It  is  not  enough  to  state  a  mere  conclusion  of  law.  Wh.  Cr.  PL  &  Pr.  §  230  ; 
and  see  U.  S.  v.  Cruikshank,  92  U.  S.  544;  States.  Record,  56  Ind.  107.  Thus 
it  would  be  insufficient  to  charge  the  defendant  with  "stealing"  or  ''murder- 
ing." 1  Roll.  Rep.  79;  2  Roll.  Ab.  79;  2  Stra.  699;  2  Hawk.  c.  2.5,  s.  59; 
Com.  Dig.  Indictment,  G.  3;  Bac.  Ab.  Indictment,  G.  1.  Wh.  Cr.  PL  &  Pr. 
§  230.  So  it  is  bad  to  accuse  him  of  being  a  common  defamer,  vexer,  or  op- 
pressor of  many  men;  2  Roll.  Ab.  79  ;  1  Mod.  71  ;  2  Stra.  848,  1246,  1247  ;  2 
Hale,  182  ;  2  Hawk.  c.  25,  s.  59  ;  Com.  Dig.  Indict.  G.  3  ;  Bac.  Ab.  Indict.  G. 
1.  Or  a  common  disturber  of  the  peace,  and  having  stirrred  up  divers  quarrels. 
Ibid.  Wh.  Cr.  PL  &  Pr.  §§  230,  231.  Or  a  common  forestaller.  Moore,  302  ; 
2  Hawk.  c.  25,  s.  59  ;  Bac.  Ab.  Indict.  G.  1.  Or  a  common  thief.  Ibid.  ;  2  Roll. 
Ab.  79  ;  2  Hale,  182;  Cro.  C.  C.  37.  Or  a  common  evil  doer.  2  Hawk.  c.  25, 
s.  59  ;  Bac.  Ab.  Indict.  G.  1.  ;  Wh.  Cr.  PL  &  Pr.  §§  230,  231.  Or  a  common 
champertor.  2  Hale,  182;  2  Hawk.  c.  25,  s.  59  ;  Bac.  Ab.  Indict.  G.  1.  Or  a 
common  conspirator,  or  any  other  such  vague  accusation.  Ibid.  ;  Com.  c.  Wise, 
110  ]Mass.  181.  See  Wh.  Cr.  L.  8th  ed.  §§  1429,  1442-8.  On  the  same  reasoning, 
in  an  indictment  for  obtaining  money  by  false  pretences,  it  will  not  sufhce  merely 
to  state  that  the  defendant  falsely  pretended  certain  allegations,  but  it  must  also 
be  stated  by  express  averment,  what  parts  of  the  representation  were  false,  for 
otherwise  the  defendant  will  not  know  to  what  circumstances  the  charge  of  false- 
hood is  intended  to  apply.  2  I\L  &  S.  379.  See  AVh.  Cr.  L.  8th  ed.  §1213. 
It  is  also  not  sufficient,  generally,  to  charge  "  malicious  mischief"  or  "  malicious 
injury  ;"  the  facts  of  the  injury  must  be  given.  Wh.  Cr.  L.  8th  ed.  §  1080; 
and  see  Ibid.  §  1841.  An  indictment,  on  the  same  principle,  charging  a  man 
with  being  a  common  cheat,  or  a  common  swindler  or  defrauder,  is  bad,  and  is 
not  helped  by  an  averment  that,  by  divers  false  pretences  and  I'alse  tokens,  he 
deceived  and  defrauded  divers  good  citizens  of  the  said  State.  Wh.  Cr.  L. 
8th  ed.  §§  1129,  1442-8,  1450;  U.  S.  v.  Royall,  3  Cranch  C.  C.  R.  618.  See 
for  furtlier  illustrations,  Wh.  Cr.  PL  &  Pr.  §  154;   infra,  499. 

23 


(2) 


GENERAL   FRAME    OF   INDICTMENT. 


A  count  cliargiiiff  the  defendant  with  voting  without  having  the  legal  qualifica- 
tions of  a  voter  is  defective.  People  v.  AV'ilber,  4  Parker  C.  R.  19  ;  Pearce  v. 
State,  1  Sneed,  63  ;  Quinn  v.  State,  35  Ind.  485  ;  but  see  State  v.  Lockbaum, 
38  Conn.  400.  And  so  of  a  count  whicli  charges  the  flefendant  with  unlawfully 
and  fraudulently  adulterating  "a  certain  substance  intended  for  food,  to  Avit,  one 
pound  of  confectionery."     Com.  u.  Chase,  125  Mass.  202. 

There  are,  however,  several  marked  exceptions  to  the  rule  requiring  the 
offence,  in  each  case,  to  be  specifically  set  forth.  Tims,  an  indictment  charging 
one  with  being  a  "common  barrator"  (Inf.  780);  or,  a  "common  scold"  (Inf. 
779);  or,  a  "common  night-walkei-"  (State  t\  Dowers,  45  N.  H.  543;  Inf. 
779  o);  is  good.  The  same  rule  applies  to  certain  lines  of  nuisance,  to  describe 
which  generic  terms  are  adequate,  as  is  the  case  with  a  "house  of  Ill-fame;"  a 
"disorderly  house"  (State  i\  Patterson,  7  Ired.  70;  Wh.  Cr.  L.,  rit  supra. 
Inf.  722);  and  a  "  tippling-house."  State  v.  Collins,  48  Me.  217.  See  Com. 
V.  Pray,  13  Pick.  359;  1  Term  R.  754;  1  Russell,  301.  So  an  Indictment  for 
betting  at  faro  bank  need  not  set  out  the  particular  nature  of  the  game,  nor  the 
name  of  the  person  with  whom  the  bet  was  made.  State  v.  Ames,  1  Mo.  372. 
See  Wh.  Cr.  L.  8th  ed.  §  146C.  But  an  Indictment,  as  has  just  been  seen, 
charging  the  defendant  as  a  common  cheat,  is  bad.  V»'h.  Cr.  L.  8th  ed.  §§ 
1128,  1129,  1442. 

If  a  particular  fact  whicli  is  matter  of  description  and  not  vital  to  the  accusa- 
tion cannot  be  ascertained,  the  indictment  will  be  good,  If  it  state  that  such  fact 
is  unknown  to  the  grand  jury,  provided  that  the  fact  in  question  be  described  as 
accurately  as  possible.  State  v.  Wood,  53  N.  H.  484;  Com.  v.  Ashton,  125 
Mass.  384;  Com.  v.  Fenno,  125  Mass.  387;  Com.  v.  Martin,  125  Mass.  394; 
Com.  V.  Webster,  5  Cush.  295;  People  t".  Taylor,  3  Denio,  91.  As  to  Instru- 
ment of  death  see  Wh.  Cr.  L.  8th  ed.  §  525;  Com.  v.  Webster;  ut  supra; 
State  V.  Williams,  7  Jones  (N.  C),  446.  Com.  v.  Martin,  125  Mass.  394. 
But  "  this  allegation,  tliat  the  name  or  other  particular  fact  Is  'unknown  to  the 
grand  jury,'  is  not  merely  formal;  on  the  contrary.  If  it  be  shown  that  it  was,  In 
fact,  known  to  them,  then,  the  excuse  failing,  it  has  been  repeatedly  held  that 
the  indictment  was  bad,  or  that  the  defendant  should  be  acquitted,  or  the  judg- 
ment arrested  or  reversed."  Christiancy,  J.,  in  jMerwIn  v.  People,  26  Alich. 
298,  citing  R.  v.  Walker,  3  Camp.  2C4  ;  1  Chltty's  Cr.  Law,  213  ;  R.  v.  Robin- 
son, Holt  N.  P.  595,  596;  Blodget  v.  State,  3  Ind.  403;  and  see  Com.  v.  Hill, 
11  Cush.  137  ;   Hays  i'.  State,  13   Mo.  246;   Reed  v.  State,  16  Ark.  499. 

A  bill  of  particulars  or  specification  of  facts  Is  a  matter  exclusively  at  the 
discretion  of  the  court.  Com.  v.  Snelling,  15  Pick.  321  ;  Com.  v.  Giles,  1 
Gray,  466.  See  Inf.  615,  n.  for  form.  See  more  fully  Wh.  Cr.  PI.  &  Pr.  §§ 
702  et  seq.  As  to  embezzlement,  see  Wh.  Cr.  L.  8th  ed.  §  1048.  As  to  con- 
spiracy see  Ibid.  §  1380  ;  and  see,  generally,  R.  v.  Kendrick,  5  A.  &  E.  (Q.  B.) 
49  ;  R.  V.  Hamilton,  7  C.  &  P.  448  ;  R.  v.  Brown,  8  Cox  C.  C.  09  ;  Com.  v.  Davis, 
11  Pick.  432;   Com.  v.  Wood,  4  Gray,  11;   People  u.  McKiimey,  10  Mich.  54. 

Unnecessary  averments  or  aggraAations  can  be  considered  as  surplusage,  and  as 
such  disregarded.  See  Wh.  (Jr.  Ev.  §§  138  et  seq. ;  U.  S.  v.  Clailin,  \'i  Blatch. 
178;  State  v.  Ballard,  2  Murph.  180  ;'^' State  v.  Munch,  22  Minn.  67.  For  illus- 
trations see  Wh.  Cr.  PI.  &  Pr.  §  158. 

Surplusage  is  not  ground  for  demurrer.  Steph.  PL  376.  But  even  though  an 
averment  is  more  particular  tlian  it  need  bo,  yet  if  it  cainiot  be  stricken  out  with- 
out removing  an  essential  part  of  the  case,  it  cannot  be  regarded  as  surplusage  ; 
and  if  there  be  a  variance  in  proving  it,  tlie  prosecution  fails.  R.  v.  Deeley, 
1  Mood.  C.  C.  303  ;  U.  S.  v.  Foye,  1  Curt.  C.  C.  364;  State  v.  Noble,  15  Me. 
476;   Com.  v.  Wellington,  7  Allen.  299;    Wh.  Cr.  Ev.  §§  109,  146. 

A  videlicet  may  be  extended  to  allegations  of  quantity,  of  distance,  of  locali- 
zation, of  dilferentiation,  so  as  to  Introduce  a  specification,  by  way  of  definition, 
to  a  clause  immediatel}'  jireceding,  and  thus  to  separate,  by  a  kind  of  bracketing, 
this   specification  from    oiher   clauses.       Wh.   Cr.   PI.    &  Pr.    §    158    a.     How 

24 


STATEMENT    OF   THE    OFFENCE.  (2) 

far  ppcoifieations  are  requisite  in  indictments  for  assaults  and  attempts  Avill  be 
considered  under  the  special  forms  to  be  hereafter  given.     Infra,  213,  104C. 

"  Or." — The  certainty  required  in  an  indictment  prechules  the  adoption  of  an 
alternative  statement.  See  States.  Charlton,  11  "\V.  Va.  332.  Thus  an  indict- 
ment is  defective  which  charges  the  defendant  with  one  or  other  of  two  oll'ences,  in 
the  disjunctive,  as  tliat  he  murdered  or  caused  to  be  murdered,  forged  or  caused 
to  be  forged.  2  Hawk.  c.  35,  s.  58  ;  R.  r.  Stocker,  1  Salk.  342,  371  ;  Com.  v. 
Perrigo,  3  Mete.  (Ky.)  5  ;  People  i'.  Tomlinson,  35  Cal.  503.  So  of  conveyed  or 
caused  to  be  conveyed,  etc.  R.  v.  Flint,  Hardw.  370.  See  R.  v.  JNlorelv,  1  Y. 
&  J.  221;  State  v.  Gary,  3G  N.  H.  359;  State  ?;.  Drake,  1  Vroom,  422; 
Noble  V.  State,  59  Ala.  73.  And  the  same,  if  it  charge  him  in  two  different 
characters,  in  the  disjunctive,  as  quod  A.  existens  servus  sive  dejmtaiu.t,  took, 
etc.  Smith  t\  ]\Iall,  2  Roll.  Rep.  2G3.  And  so  where  the  defendant  is  charged 
with  having  administereil  a  poison  or  drug  (State  v.  Drake,  1  Vroom,  422; 
Com.  V.  France,  2  Brewst.  5G8  ;  State  v.  Green,  3  Heisk.  131  ;  Whiteside  v. 
State,  4  Cold.  183.  See  Wingard  v.  State,  13  Ga.  39G)  ;  or  having  sold  spirit- 
uous or  intoxicating  liquors.  Com.  v.  Grey,  2  Gray,  501.  But  see  Cunningham 
V.  State,  5  W.  Va.  508.  So,  generally,  an  indictment  which  may  apply  to  either 
of  two  different  offences,  and  does  not  specify  which,  is  bad.  R.  v.  Marshall, 
1  Mood.  C.  C.  158;  Stare  v.  Harper.  64  N.  C.  129;  Johnson  v.  State,  32  Ala. 
583  ;  Horton  v.  State,  GO  Ala.  73.  As  to  averment  of  such  disjunctive  allega- 
tions see  Wh.  Cr.  PI.  &  Pr.  §  228.  That  such  averments  are  divisible  see  Wh. 
Cr.  PI.  &  Pr.  §§  228,  251.  On  the  other  hand,  alternatives  have  been  permitted 
when  they  qualify  an  unessential  description  of  a  particular  oflfence,  and  do  not 
touch  the  ofience  itself.  Barnett  v.  State,  54  Ala.  579;  State  w.  Newsom,  13  W. 
Va.  859.  See  for  illustrations  Wh.  Cr.  PI.  &  Pr.  §  161.  The  principle  seems  to  be, 
that  "or"  is  only  fatal  when  it  renders  the  statement  of  the  offence  uncertain,  and 
not  so  Avhen  one  term  is  used  oidy  as  explaining  or  illustrating  tl^ie  other.  Com. 
V.  Grey,  2  Gray,  501 ;  Brown  i'.  Com.,  8  Mass.  59  ;  People  v.  Gilkinson,  4  Park. 
C.  C.  26  ;  State  v.  Ellis,  4  Mo.  474.  See  Morgan  v.  Cora.,  7  Grat.  592.  "  Or," 
also,  may  be  Introduced  in  enumerating  the  negative  averments  recjulred  to  ex- 
clude the  exceptions  of  a  statute.  Ibid.  ;  State  v.  Burns,  20  N.  H.  550.  And 
ordinarily  the  objection,  if  good,  cannot  be  taken  after  verdict.  Johnson  v. 
State,  50  Ala.  456. 

Even  where  a  statute  disjunctively  enumerates  offences,  or  the  intent  necessary 
to  constitute  such  ofli'ences,  the  Idlctment  cannot  charge  them  disjunctively.  U. 
S.  V.  Armstrong,  5  Phil.  Rep.  273;  State  v.  Colwells,  3  R.  I.  284;  States. 
Price,  6  Halst.  203;  Jones  v.  State,  1  McMullan,  236;  Whiteside  v.  State,  4 
Cold.  183.  Wh.  Cr.  PL  &  Pr.  §  228.  For  illustrations  see  Wh.  Cr.  PI.  &  Pr. 
§  162.  The  successive  gradations  of  statutory  offences  cannot,  therefore,  be 
stated  disjunctively ;  though  to  state  them  conjunctively,  when  they  are  not 
repugnant.  Is  allowable.  R.  i'.  North,  6  D.  &  R.  143  ;  "U.  S.  v.  Armstrong,  5 
Phil.  Rep.  273;  Com.  w.  Grey,  2  Gray,  501;  State  v.  Price,  6  Halst.  203; 
Angel  ('.  Com.,  2  Va.  Cas.  231  ;  Rasnick  v.  Com.,  Ibid.  356;  Jones  ?'.  State, 
1  ISIc^Mullan,  236  ;  State  v.  Meyor,  1  Speers,  305;  Wingard  v.  State,  13  (ia.  39G  ; 
State  V.  McCollum,  44  i\Io.  343  ;  Keefer  v.  State,  4  Ind.  246  ;  People  v.  Ah 
Woo,  28  Cal.  205  ;   and  cases  cited,  supra. 

Intent.,  when  qualifying  the  character  of  the  act,  as  Avhen  there  Is  an  attempt 
or  assault  to  commit  an  offence,  must  be  averred  (Com.  ik  Herscv,  2  Allen, 
173;  State  r.  Garvey,  11  Mum.  154;  State  v.  Davis,  26  Tex.  201";  People  r. 
Congleton,  44  Cal.  92)  ;  and  must  be  attached  to  all  the  material  allegations. 
R.  V.  Rushworth,  R.  &  R.  317  ;  Com.  v.  Boynton,  12  Cush.  500  ;  Com.  v.  J^ean, 
110  Mass.  64. 

But  where  the  Intent  Is  to  be  prima  facie  inferred  from  the  facts  stated,  it 
need  not,  unless  part  of  the  statutory  definition,  be  specifically  averred.  Thus, 
while  Intent  must  be  averred  in  an  indictment  for  an  attempt  to  steal,  it  need 
not  be  averred  in  an  indictment  for  larceny.     Ibid. 

Where  Intent  Is  part  of  the  statutory  definition  of  the  offence  it  must  be  averred. 

25 


(2)  GENERAL    FRAME   OF   INDICTMENT. 

In  some  Stutes  the  .allegation  of  intent  may  by  statute  be  dispensed  with. 
Wh.  Cr.  PL  cS:  Pr.  §  1C4. 

In  negligent  oti'ences,  to  allege  intent  is  a  fatal  error,  unless  the  allegation  be 
so  stated  as  to  be  capable  of  discharge  as  surplusage.  See  Wh.  Cr.  L.  8th  ed. 
§§  125  et  seq. 

Scienter. — Where  guilti/  knowledge  is  not  a  necessary  ingredient  of  the  offence, 
or,  where  the  statement  of  the  act  itself  necessarily  includes  a  knowledge  of  the 
illegality  of  the  act,  no  averment  of  knowledge  is  necessary.  1  Hale  P.  C.  561  ; 
2  East  P.  C.  51  ;  6  East,  4  74  ;  1  B.  &  P.  86  ;  Com.  v.  Elwell,  2  Met.  (Mass.) 
190  ;  Com.  v.  Boynton,  12  Cush.  499  ;  Com.  v.  Stout,  7  B.  Monr.  247  :  Turner 
V.  State,  1  Ohio  St.  422  ;  State  v.  Freeman,  G  Blackf.  248  ;  Wh.  Cr.  PL  &  Pr. 
§  272.  It  is  otherwise  where  guilty  knowledge  is  not  so  implied  and  is  a  sub- 
stantive Ingredient  of  the  offence.  U.  S.  v.  Buzzo,  18  Wall.  125  ;  State  v.  Card, 
34  N.  H.  510;  Com.  v.  Dean,  110  Mass.  64;  People  v.  Lohman,  2  Barb.  S.  C. 
216;  Com.  v.  Blumenthal,  cited  infra,  528,  n.  ;  Gabe  v.  State,  1  Eng.  (Ark.) 
519  ;  Norman  v.  State,  24  IMIss.  54  ;  Stein  v.  State,  37  Ala.  123.  Thus  in  an  In- 
dictment for  selling  an  obscene  book,  a  scienter  is  necessary  (Com.  v.  McGarri- 
gall.  cited  1  B-'unett  &  Heard's  Lead.  Cas.  551  ;  see  also  State  v.  Carpenter, 
20  Vt.  9;  Com.  v.  Kirby,  2  Cush.  577  ;  State  v.  Brown,  2  Speers,  129),  and  so 
in  an  indictment  for  selliug  unwholesome  water  (Stein  v.  State,  37  Ala.  123)  ; 
and  in  indictments  for  assaulting  officers  (Wh.  Cr.  L.  8th  ed.  §  649);  though  it 
has  not  been  held  necessary  in  an  indictment  for  adultery.  Com.  v.  Elwell,  2 
Met.  190  ;   Wh.  Cr.  L.  8th  ed.  §  1731. 

Under  a  statute,  where  the  guilty  knowledge  Is  part  of  the  statutory  definition 
of  the  offence,  it  must  be  averred.  R.  v.  Jukes,  8  Term  R.  625  ;  R.  v.  Myd- 
dleton,  6  Term  R.  739;  1  Starkie  C.  P.  196;  State  v.  Gove,  34  N.  H.  5*10; 
People  V.  Lohman,  2  Barb.  216  ;  State  v.  Stimson,  4  Zabr.  478  ;  State  v.  Bloe- 
dow,  45  Wis.  279.  See  U.  S.  v.  Schuler,  6  McLean,  28.  As  to  receiving 
stolen  goods,  see  Inf.  450;  Wh.  Cr.  L.  8th  ed.  §  999.  As  to  false  pretences. 
Inf.  528  ;  Wh.  Cr.  L.  8th  ed.  §  1225.  As  to  adultery.  Inf.  995  ;  AVh.  Cr.  L.  8th 
ed.  §  1731.  As  to  incest,  etc.,  Inf.  1000;  Wh.  Cr.  L.  8th  ed.  §  1752.  As  1o 
poisoning,  Inf.  1059;  Wh.  Cr.  L.  8th  ed.  §  524.  As  to  offences  on  the  high 
seas,  Inf^  1061  et  seq.;  Wh.  Cr.  L.  8th  ed.  §§  1871,  1886.  As  to  perjury.  Inf. 
577;  Wh.  Cr.  L.  8th  ed.  §  1286.  But  where  an  act  is  made  indictable  irre- 
spective of  the  scienter,  the  scienter  is  not  to  be  averred  in  the  indictment,  since 
if  It  were,  It  might  be  regarded  as  a  descriptive  allegation,  which  it  is  necessary 
to  prove.  Wh.  Cr.  L.  Sth  ed.  §  88;  R.  v.  Gibbons,  12  Cox  C.  C.  237;  R.  v. 
HIcklln,  L.  R.  3  Q.  B.  360;  ll.  v.  Prince,  L.  R.  1  C.  C.  R.  154;  State  v. 
Goodenow,  65  Me.  30  ;  State  v.  Bacon,  7  Vt.  219  ;  Com.  v.  Elwell,  2  INIet.  110; 
Com.  V.  Thompson,  11  Allen,  23;  Com.  v.  Smith,  103  Mass.  444;  Phillips  v. 
State,  17  Ga.  459. 

Matters  of  inducement  or  aggravation  do  not  require  so  much  certainty  as  the 
statement  of  the  gist  of  the  offence.  R.  v.  Wright,  1  Vent.  170;  Com.  Dig. 
Indict.  G.  5.  As  to  evidence  of  surplusage  of  this  kind,  see  Wh.  Cr.  Ev.  §§  138 
et  seq.     And  where  the  offence  cannot  be  stated  with  complete  certainty,  it  is 

sufficient  to  state  it  with  such  certainty  as  it  is  capable  of.     R.  v.  ,  1   Chit. 

Rep.  698;  R.  v.  Eccles,  1  Leach,  274;  R.  v.  Gill,  2  Barn.  &  Aid.  204;  Com. 
V.  Judd,  2  Mass.  329  ;  Com.  v.  Collins,  3  S.  &  R.  220  ;  Com.  v.  Mlffiin,  5  Watts 
&  S.  461. 

Statutory  Offences. — Where  a  statute  prescribes  or  implies  the  form  of  the 
indictment,  It  Is  usually  sufficient  to  describe  the  offence  In  the  words  of  the  stat- 
ute, and  for  this  purpose  it  is  essential  that  these  words  should  be  used.  In  such 
case  the  defendant  must  be  specially  brought  within  all  the  material  words  of  the 
statute;  and  nothing  can  be  taken  by  intendment.  Whether  this  can  be  done 
by  a  mere  transcript  of  the  Avords  of  the  statute  depends  in  part  upon  the  struc- 
ture of  the  statute,  in  part  upon  the  rules  of  pleading  adopted  by  statute  or  other- 
wise, in  the  particular  jurisdiction.  On  the  general  principles  of  common  law 
pleading,  it  nuiy  be  said  that  it  is  sufficient  to  frame  the  indictment  in  the  words 

26 


STATUTOKY    OFFENCES.  (2) 

of  the  statute,  in  all  cases  where  the  statute  so  far  individuates  the  offence  that 
the  offender  has  })roper  notice,  from  the  mere  adoption  of  the  statutory  terms, 
■what  the  offence  he  is  to  be  tried  for  really  is.  But  in  no  other  case  is  it  suffi- 
cient to  follow  the  words  of  the  statute.  It  is  no  more  allowable,  under  a  statu- 
tory chai-ge,  to  put  the  defendant  on  trial  without  specification  of  the  offence, 
than  it  would  be  under  a  common  law  charge.  For  authorities  for  these  positions, 
see  Wh.  Cr.  PI.  &  Pr.  §§  220  et  seq.  And  besides  this  general  principle,  there 
are  the  following  settled  exceptions  to  the  rule  before  us. 

(1)  Statutes  frequently  make  indictable  common  law  offences,  describing  them 
in  short  by  their  technical  name,  e.g.  "burglary,"  "arson."  Xo  one  would 
venture  to  say  that  in  such  cases  indictments  would  be  good  charging  the  defend- 
ants with  committing  "burglary"  or  "  arson." 

(2)  A  statute  may  be  one  of  a  system  of  statutes,  from  which,  as  a  whole,  a 
description  of  the  offence  must  be  picked  out.  Thus,  a  statute  makes  it  indict- 
able to  obtain  negotiable  paper  by  false  pretences.  But  what  are  "false  pre- 
tences?" To  learn  this  we  have  to  go  to  another  statute,  and  this  statute,  it 
may  be,  refers  to  another  statute,  giving  the  definition  of  terms.  No  one  of  these 
statutes  gives  an  adequate  description  of  the  offence,  nor  can  such  description  be 
taken  from  them  in  a  body.     It  is  inferred  from  them,  not  extracted  from  them. 

(3)  A  statute  on  creating  a  new  offence  describes  it  by  a  popular  name.  It 
is  made  indictable,  for  instance,  to  obtain  goods  by  "falsely  personating"  another. 
But  no  one  would  maintain  that  it  is  enough  to  charge  the  defendant  with  "falsely 
personating  another."  So  far  from  this  being  the  case,  the  indictment  would 
not  be  good  unless  it  stated  the  kind  of  personation,  and  the  pei-son  on  whom  the 
personation  took  effect.  An  Act  of  Congress,  to  take  another  illustration,  makes 
it  indictable  to  "  make  a  revolt,"  but  under  this  act  it  has  been  held  necessary  to 
specify  what  the  revolt  is.  U.  S.  v.  Almeida,  Infra,  1061.  "  Fraud"  in  elec- 
tions, in  a  Pennsylvania  statute,  is  made  indictable  ;  but  the  indictment  must  set 
out  what  the  fraud  is.     Com.  v.  Miller,  2  Pars.  197. 

(4)  The  terms  of  a  statute  may  be  more  broad  than  its  intent,  in  which  case 
the  indictment  must  so  differentiate  the  offence  (though  this  may  bring  it  be- 
low the  statutory  description)  as  may  effectuate  the  intention  of  the  legislature. 
U.  S.  V.  Pond,  2  Curtis  C.  C.  2G8  ;  Com.  v.  Slack,  19  Pick.  304;  Com.  v.  Col- 
lins, 2  Cush.  556. 

(5)  An  offence,  when  against  an  individual,  must  be  specified  as  committed  on 
such  an  individual,  when  known,  tliough  no  such  condition  is  expressed  in  the 
statute ;  though  it  is  otherwise  with  nuisances,  and  offences  against  the  public. 
Com    V.  Ashley,  2  Gray,  357  ;   Wh.  Cr.  L.  8th  ed.  §§  1410  ct  soj. 

(6)  An  indictment,  when  professing  to  recite  a  statute,  is  bad  if  the  statute  is 
not  set  forth  correctly.  AVh.  Cr.  PL  &  Pr.  §  222.  It  is  otherwise  when  the 
statute  is  counted  on  (or  appealed  to  by  the  conclusion  against  the  form  of  the 
statute,  etc.),  in  which  case,  as  is  hereafter  noticed,  terms  convertible  with  those 
in  the  statute  may  be  used.  Wh.  Cr.  Ev.  §§  91  et  seq.;  Com.  v.  Unknown, 
6  Gray,  489  ;  State  v.  Petty,  Harp.  59  ;  Butler  v.  State,  3  McCord,  383  ;  Hall  v. 
State,  3  Kelly,  ]  8. 

(7)  Where  a  general  word  is  used,  and  afterwards  more  special  terms,  dtifining 
an  offence,  an  indictment  charging  the  offence  must  use  the  most  special  terms ; 
and  if  the  general  word  is  used,  though  it  would  embrace  the  special  term,  it  is 
inade(|uate.  State  v.  Plunkett,  2  Stew.  11  ;  State  v.  Ilailbrd,  7  Port.  101  ;  Arch- 
bold,  C.  P.  93. 

(8)  An  indictment  on  a  private  statute  must  set  out  the  statute  at  full.  State 
V.  Cobb,  1  Dev.  &  Bat.  115  ;  Goshen  v.  Sears,  7  Conn.  92  ;  1  Sid.  356  ;  2  Hale, 
172;  2  Hawk.  c.  25,  s.  103;  Bac.  Ab.  Indict,  p.  2.  It  is  otherwise  with  a 
public  statute.     Wh.  Cr.  PI.  &  Pr.  §  224. 

(9)  It  is  not  necessary  to  indicate  the  particular  section,  or  even  the  particular 
statute,  ujion  which  the  case  rests.  Com.  v.  Griflin,  21  Pick.  523,  5'25  ;  Coin.  v. 
Wood,  11  Gray,  85;   Com.  v.  Tlioinpson,  108  Mass.  461. 

(10)  The  indictment  must  show  what  offence  has  been  committed  ami  what 

27 


(2)  GENERAL    FRAME   OF   INDICTMENT. 

penalty  incuiTod  by  positive  averment.     It  is  not  sufiieient  that  they  appear  by 
inference.     AVh.  Cr.  PI.  &  Pr.  §  225. 

(11)  Wliere  a  statute  creates  an  offence,  which,  from  its  nature,  requires  the 
parti(.'ii)ation  of  more  than  one  person  to  constitute  it,  a  sin<>;]c  individual  cannot 
be  charged  with  its  commission  unless  in  connection  with  persons  unknown.  Wh. 
Cr.  PL  &  Pr.  §  227. 

(12)  Though  the  language  of  the  statute  be  disjunctive,  e.  g.  burned  or 
caused  to  be  burned,  and  the  indictment  chai'ge  the  offence  in  the  conjunctive, 
e.  (J.  burned  and  caused  to  be  burned,  the  allegation,  as  has  been  noticed,  is  suf- 
ficient. Wh.  Cr.  PI.  &  Pr.  §  228.  And  it  is  held  that  when  the  words  of  the 
statute  are  synonymous,  it  may  not  be  error  to  charge  them  alternatively. 

(13)  Whenever  a  statute  attaches  to  an  offence  certain  technical  predicates, 
these  predicates  must  be  used  in  the  indictment.  Thus  in  an  indictment  on  the 
statute  which  makes  it  high  treason  to  clip,  round,  or  file  any  of  the  coin  of  the 
realm,  "for  wicked  lucre  or  gain  sake,"  it  was  held  necessary  to  charge  the 
offence  to  have  been  committed  for  the  sake  of  wicked  lucre  or  gain.  1  Hale, 
220.     For  other  illustrations  see  Wh.  Cr.  PI.  &  Pr.  §  235. 

(14)  A  statute  may  include  cumulative  terms  of  aggravation,  for  which  sub- 
stitutes may  be  found  without  departing  from  the  sense  of  the  statutory  definition  ; 
or,  as  in  the  case  of  the  Pennsylvania  and  cognate  statutes  dividing  murder  into 
two  degi-ees,  the  terms  used  to  indicate  the  difjerentiu  of  the  offence  may  be 
regarded  as  so  far  ecjuivalents  of  the  common  law  description  that  the  common 
law  description  may  be  held  to  be  proper,  and  the  introduction  of  the  statutory 
terms  unnecessary.  Or,  another  word  may  be  held  to  be  so  entirely  convertible 
with  one  in  the  statute  that  it  may  be  substituted  without  variance.  In  such  case 
a  deviation  from  the  statutory  terms  may  l>e  sustained.  U.  S.  v.  Nunnemacher, 
7  Biss.  129;  Dewee's  case,  Chase's  Dec.  531  ;  Tully  v.  People,  G7  N.  Y.  15; 
State  V.  Shaw,  35  Iowa,  575  ;  INIcCutcheon  i'.  State,  69  111.  601  ;  State  v.  Welch, 
37  Wis.  196;  State  v.  Lawrence,  81  N.  C.  521  ;  State  v.  Thorne,  81  N.  C. 
558;  Roberts  v.  State,  55  INIiss.  414;  State  v.  Watson,  65  Mo.  115.  Thus,  if 
the  word  ^^  knoicinf/h/'  he  m  the  statute  and  the  word  ^'■advisedly"  be  substi- 
tuted for  it  in  the  indictment  (R.  v.  Fuller,  1  B.  &  P.  180)  ;  or  the  word  "  wil- 
fullij"  be  in  the  statute  and  '•'■maliciously"  in  the  indictment,  the  words 
^'■advisedly"  and  ^^  nialiciously,"  not  being  in  the  statutes  respectively,  the 
indictment  would  be  sufficient.  In  further  illustration  of  this  view  it  may  be 
mentioned  that  "excite,  move,  and  procure"  are  held  convertible  with  "com- 
mand, hire,  and  counsel"  as  used  in  the  statute  (R.  v.  Grevil,  1  And.  194); 
and  "without  lawful  authority  and  excuse"  with  "without  hnvful  excuse." 
R.  r.  Harvey,  L.  R.  1  C.  C.  284.  It  is  not  essential,  on  an  indictment  on  the 
Slavetrade  Act  of  20th  of  April,  1818,  c.  86,  §§  2  and  3,  to  aver  that  the  de- 
fendant knowingly  committed  the  offence.     U.  S.  v.  Smith,  2  Mason,  143. 

(15)  When  a  statute  uses  a  nomen  generalissimum  as  such  (e.  (/.  cattle),  then 
a  particular  species  can  be  proved  ;  but  when  the  statute  enumerates  certain 
species,  leaving  out  others,  then  the  latter  cannot  be  proved  under  the  nomen 
(jeneralissimum,  unless  it  appears  to  have  been  the  intention  of  the  legislature  to 
use  it  as  such.  R.  v.  Welland,  R.  &  R.  494  ;  R.  v.  Chard,  R.  &  R.  488.  See 
States.  Abbott,  20  Vt.  537;  Taylor w.  State,  6  Humph.  285;  State  v.  Plunket, 
2  Stew.  11  ;  State  v.  Godet,  7  Iivd.  210  ;  Shubrick  v.  State,  2  S.  C.  21  ;  though 
see  State  v.  McLain,  2  Brev.  443. 

(16)  When  "provisos"  and  "exceptions"  are  not  by  the  statute  incorporated 
in  the  definition  of  the  offence,  it  is  not  necessary  to  state  in  the  indictment  that 
the  defendant  does  not  come  within  the  exceptions,  or  to  negative  the  statutory 
provisos.  For  authorities  see  Wh.  Cr.  PI.  &  Pr.  §  238.  Nor  is  it  necessary  to 
allege  that  he  is  not  Avithin  the  benefit  of  the  provisos,  though  the  purview 
should  expressly  notice  them  ;  as  by  saying  that  none  shall  do  the  act  i)rohibited, 
except  in  tiie  cases  thereinafter  excepted.  Wh.  Cr.  PI.  &  Pr.  §  238.  Extenua- 
tion which  comes  in  l)y  way  of  subse(]uent  proviso  or  excejition  need  not  be 
pleaded  by  the  prosecution      Ibid. 

28 


STATUTORY    OFFENCES — CONCLUSIONS.  (2) 

(17)  "Where  a  proviso  adds  a  qualification  to  the  enactment,  so  as  to  bring  a 
case  within  it,  wliich,  but  for  the  proviso,  would  be  witliout  the  statute,  the 
indictment  must  show  the  case  to  be  within  the  proviso.     Ibid.  §  239. 

(18)  Where  a  statute  forbids  the  doing  of  a  particular  act,  without  the  existence 
of  either  one  of  two  conditions,  the  indictment  must  negative  the  existence  of  both 
these  conditions  before  it  can  be  supported.     Ibid. 

(19)  Where  exceptions  are  stated  in  the  enacting  clause  (under  which  term  is 
to  be  understood  all  parts  of  the  statute  which  define  the  ofience),  unless  they 
be  mere  matters  of  extenuation  or  defence,  it  will  be  necessary  to  negative  them, 
in  order  that  the  description  of  the  crime  may  in  all  respects  correspond  with  the 
statute.  2  Hale.  170;  1  Burr.  148;  Fost.  430;  1  East  Rep.  G4G,  in  notes ;  1 
T.  R.  144;  1  Ley,  26;  Com.  Dig.  Action,  Statute;  1  Chitty  on  Plead.  357; 
State  V.  Munger,  15  Vt.  290;  State  v.  Godfrey,  24  JNIe.  232;  though  see  State 
V.  Price,  12  Gill  &  J.  2G0  ;  Elkins  v.  State,  13  Ga.  435;  Metzker  y.  People, 
14  III.  101.     For  illustrations  see  Wh.  Or.  PI.  &  Pr.  §  240. 

(20)  As  a  rule  mere  excusatorv  defence  is  not  to  be  negatived  in  the  indict- 
ment. See  1  Benn.  &  Heard's  Lead.  Cas.  250  ;  State  v.  Abbey,  29  Vt.  60  ;  Com. 
V.  Hart,  11  Cush.  130;  Com.  v.  Jennings,  121  Mass.  47;  State  v.  O'Donnell, 
10  R.  I.  472  ;  Hill  i\  State,  53  Ga.  472  ;  Nealesu.  State,  10  Mo.  498  ;  Surratt  v. 
State,  45  Miss.  601  ;   Wh.  Cr.  L.  8th  ed.  §  1713. 

(/■.)  The  constitutions  of  most  of  the  States  contain  a  provision  that  all  indict- 
ments shall  conclude  against  their  peace  and  dignity  respectively,  and  when  so 
the  conclusion  must  be  thus  given  in  the  indictment.  See  for  forms.  Inf.  chap, 
iii.  ;  and  see  Lemons  v.  State,  4  W.  Va.  755  ;  Rice  v.  State,  3  Heisk.  215  ; 
Holden  v.  State,  1  Tex.  Ap.  225.  But  informations  are  not  bound  by  the  limi- 
tation. Nicholas  v.  State,  35  AVis.  308.  Thus  in  Pennsylvania,  it  is  provided 
that  all  prosecutions  shall  be  carried  on  in  the  name  and  by  the  authority  of  the 
Commonwealth  of  Pennsylvania,  and  conclude  "against  the  peace  and  dignity  of 
the  same."  Constit.  art.  v.  §  23.  And  the  proper  conclusion  of  an  indictment 
in  Pennsylvania,  said  the  Supreme  Court,  is  "against  the  peace  and  dignity  of 
the  Commonwealth  of  Pennsylvania.''  Com.  v.  Rogers,  5  S.  &  R.  463.  In 
New  Hampshire,  the  Constitution  retjuires  all  indictments  to  terminate  "  ao;ainst 
the  peace  and  dignity  of  the  State;"  and  it  has  been  held,  that  it  is  sufficiently 
complied  with  by  an  indictment  concluding  "  against  the  peace  and  dignity  of 
our  said  State."  State  v.  Kean,  10  N.  II. "347."  In  South  Carolina,  an  indict- 
ment stating  an  offence  against  the  State,  and  concluding  with  the  words  "  against 
the  peace  and  dignity  of  the  same,"  is  good  within  the  terms  of  the  Constitution 
of  1790.  State  v.  Washington,  1  Bay,  120.  Where  an  indictment  commenced 
"South  Carolina,"  and  not  the  "State  of  South  Carolina,"  and  concluded 
"against  the  peace  and  dignity  of  the  said  State,"  and  not  against  the  peace  and 
dignity  of  the  same,  the  court  held  the  termination  good.  State  v.  Anthony,  1 
McCord,  285.  In  the  same  State  an  indictment  was  held  good,  though  it  con- 
cluded "against  the  peace  and  dignity  of  this  State,"  instead  of  concluding 
"  against  the  peace  and  dignity  of  the  same  State."  State  o.  Yancey,  1  Con.  R. 
237.  But  the  conclusion  must  be  against  the  peace  and  dignity  of  the  State. 
State  t'.  Strickland,  10  S.  C.  19.  Whenever  required  by  constitution  or  statute, 
the  omission  of  the  conclusion  "against  the  peace,"  etc.,  will  be  held  fatal. 
Com.  V.  Carney,  4  Grat.  546  ;  Thompson  v.  Com.  20  Grat.  724  ;  Lemons  v. 
State,  4  ^Y.  Va.  755  ;  State  v.  Allen,  8  W.  Va.  680  ;  State  v.  McCoy,  29  La.  An. 
593  ;  State  v.  Lopez,  19  Mo.  254  ;  State  v.  Reaky,  1  Mo.  Ap.  3  ;  State  v.  Durst, 
7  Tex.  74.  By  the  Constitution  of  Arkansas,  indictments  must  conclude  "against 
the  peace  and  dignity  of  the  State  of  Arkansas"  (Buzzard  «.  State,  20_  Ark. 
106),  but  the  interpolation  of  the  words,  "people  of  the,"  will  not  vitiate. 
"  The  form  adopted  by  the  Constitution,"  it  was  said,  "  is  merely  declaratory, 
and  in  affirmance  of  an  old  principle,  not  the  creation  of  a  new  one."  Andt'rson 
V.  State,  5  Pike,  445.  And  if  there  be  several  counts  in  an  indictment,  eaclionc 
must  so  conclude,  or  the  court  will  (piash  the  count  in  which  the  propiu-  conclu- 
sion is   omitted.       State  v.  Cadle,  19   Ark.   613.     In  Mississippi,  an  indictment 

29 


(2) 


GENERAL   FRAME    OF   INDICTMENT. 


commoncing  with  the  words,  "The  State  of  Mississippi,"  and  coneluding, 
"against  the  peace  and   dignity  of  the  same,"  is  snflicient.      State  v.   Johnson, 

1  Walk.  392.  In  Illinois,  an  indictment  concluding  "  against  the  peace  and  dig- 
nity of  the  people  of  the  State  of  Illinois,"  is  good.  Zarresseller  v.  People,  17 
111.  101.  An  indictment  in  Kentucky,  which  states  in  the  commencement  cor- 
rectly the  name  of  the  commonwealth,  by  the  authority  of  which  it  proceeds, 
may  conclude  against  the  peace  and  dignity  of  the  commonwealth,  without  stat- 
ing the  name,  nor  is  it  necessary  even  to  aver  "  the  authority,"  of  the  common- 
wealth. Com.  I'.  Young.  7  B.  ]Mon.  1  ;  Allen  v.  Com.,  2  Bibb,  210.  The  Con- 
stitution of  Iowa  refpiires  proceedings  to  be  conducted  in  the  name  of  the  "  State 
of  Iowa;"  and  under  it,  it  is  held  that  an  indictment  in  the  name  of  the  "  State 
of  Iowa"  is  good.     Harriman  v.  State,  2  Greene  (Iowa),  270. 

In  the  United  States  courts,  a  conclusion  "contrary  to  the  true  intent  and  mean- 
ing of  the  act  of  congress,  in  such  case  made  and  provided,"  has  been  held  suiR- 
cient.  U.  S.  i'.  La  Costa,  2  Mason,  129  ;  U.  S.  v.  Smith,  2  Mason,  143.  But  see 
U.  S.  V.  Crittenden,  1  Hcmpst.  61.  But  an  indictment  charging  A.  with  having 
committed  an  offence,  made  such  by  a  statute,  "in  contempt  of  the  laws  of  the 
United  States  of  America,"  is  bad.     U.  S.  v.  Andrews,  2  Paine  C.  C.  451. 

Where  a  statute  creates  an  offence,  or  declares  a  common  law  offence,  when 
committed  under  particular  circumstances,  not  necessarily  in  the  original  offence, 
punishable  in  a  different  manner  from  what  it  would  have  been  without  such 
circumstances  ;  or,  where  the  statute  changes  the  nature  of  the  common  law 
offence  to  one  of  a  higher  degree,  as  where  what  was  originally  a  misdemeanor 
is  made  a  felony,  the  indictment  should  conform  to  the  statute  creating  or  cliang- 
ing  the  nature  of  the  offence,  and  should  conclude  against  the  form  of  the  statute. 
Under  a  statute  revising  and  absorbing  the  common  law,  the  conclusion  must  be 
statutory.     Wh.  Cr.  PI.  &  Pr.  §  280,  where  authorities  are  given. 

But  it  is  otherwise  where  the  statute  is  only  declaratory  of  what  was  a  previous 
offence  at  common  law,  without  adding  to  or  altering  the  punishment.  And 
where  a  statute  only  inflicts  a  punishment  on  that  which  was  an  offence  before, 
judgment  may  be  given  for  the  punishment  prescribed  therein,  though  the  in- 
dictment does  not  conclude  contra  fnrmam  stafuti,  etc.     Ibid.  §  281. 

The  proper  office  of  the  conclusion,  contra  formam  statiiti,  is  to  show  the 
court  the  action  is  founded  on  the  statute,  and  is  not  an  action  at  common  law. 
Grain  v.  State,  2  Yerg.  390.  One  count  concluding  '^contra  formam,^'  etc., 
does  not  cure  another  without  the  proper  conclusion.  State  i\  Soule,  20  Me.  19. 
But  such  a  conclusion  of  the  final  count  has  been  held  in  Alal)ama  to  validate 
prior  counts  defective  in  this  respect.  McGuire  v.  State,  1  Ala.  Sel.  Ca.  69  ;  37 
Ala.  161. 

Where  the  offence  is  governed  or  limited  by  two  statutes,  there  have  been 
various  distinctions  taken  respecting  the  conclusion  against  the  form  of  the  statutes 
in  the  plural  or  the  statute  in  the  singular.  The  rule  given  by  the  older  writers 
is,  that  where  an  offence  is  prohibited  by  several  independent  statutes,  it  was 
necessary  to  conclude  in  the  plural ;  but  now  the  better  opinion  seems  to  be,  that 
a  conclusion  in  the  singular  will  suffice.     1  Hale,  173;   Sid.  348;   Owen,  135; 

2  Leach,  827;  1  Dyer,  347  a;  4  Co.  48;  2  Hawk.  c.  25,  s.  117;  R.  v.  Pim, 
K.  &  Pt.  425  ;  though  see  R.  v.  Adams,  C.  &  M.  299;  U.  S.  v.  Trout,  4  Biss. 
105  ;  Butman's  case,  8  Greenl.  113  ;  Kane  v.  People,  9  Wend.  203  ;  Townh-y  n. 
State,  3  Harr.  N.  J.  311;  State  v.  Jones,  4  Halst.  357;  State  v.  Dayton,  3 
Zabr.  49  ;  Bennett  v.  State,  3  Ind.  167  ;  State  v.  Bobbins,  1  Strobh.  355  ;  State 
V.  Bell,  3  Ired.  506.  The  practice  is  to  conclude  in  the  singular  in  all  cases, 
though  in  Maryland  (State  r.  Cassel,  2  Harr.  &  Gill,  407  ;  see  also  State  v.  Pool, 
2  Dev.  202)  it  has  been  held  that  Avhen  an  offence  is  prohibited  by  one  act  of 
assembly,  and  the  punishment  prescribed  and  affixed  by  another,  the  conclusion 
should  be  against  the  acts  of  assembly. 

Though  tliere  is  but  one  statute  prohibiting  an  offence,  it  is  not  fatal  for  the 
indictment  to  conclude  contrary  to  the  "statutes." 

In  a  common  law  indictment,  the  words  contra  formam  statuti  mav  be  rejected 

30 


JOINDER   OF   OFFENCES.  (2) 

as  surplusage.  And  wliere  an  offence,  both  by  statute  and  common  law,  is  badly 
laid  under  the  statute,  the  judgment  may  be  given  at  common  law.  State  v.  Burt, 
26  Vt.  373;  State  v.  Gove,  3-4  N.  H.  510;  State  v.  Buckman,  8  N.  H.  203; 
State  V.  Phelps,  11  Vt.  117  ;   Com.  v.  Hoxey,  16  Mass.  385  ;   Knowles  v.  State, 

3  Dav,  103  ;  Southworth  v.  State,  5  Conn.  ^25  ;  Com.  v.  Gregory,  2  Dana,  417  ; 
Resp'.  V.  Newell,  3  Yeates,  407;  Penn.  v.  Bell,  Addison,  171  ;   Haslip  v.  State, 

4  Havw.  273;  2  Hale,  190;  Alleyn,  43;  1  Salk.  212,  213;  5  T.  R.  162;  2 
Leach,  584;  2  Salk.  460;  1  Ld.  Raym.  1163;  1  Saund.  135,  n.  3  ;  2  Hawk.  c. 
25,  s.  115;   Bac.  Ab.  Indict.  H.  2;   Burn,  J.,  ix. 

(/)  Offences,  though  differing  from  each  other,  and  varying  in  the  punishments 
authorized  to  be  inflicted  for  tlu'ir  perpetration,  may  be  included  in  the  same  in- 
dictment, and  the  accused  tried  upon  the  several  charges  at  the  same  time,  pro- 
vided the  offences  be  of  the  same  general  character,  and  provided  the  mode  of 
trial  is  the  same.  R.  v.  Fussell,  3  Cox  C.  C.  291  ;  U.  S.  v.  O' Callahan,  6 
McLean,  596;  Charlton  v.  Com.  5  Met.  532;  Josslyn  v.  Com.  6  Met.  236; 
Com.  V.  Costello,  120  Mass.  358;  Com.  v.  Brown,  121  Mass.  69  (in  Massachu- 
setts, the  law  is  not  changed  by  the  stat.  of  1861  ;  Com  v.  Costello,  siqira)  ; 
People  r.  Rynders,  12  Wend.  425;  Edge  v.  Com.  7  Barr,  275;  Mills  u  Com. 
13  Penn.  St.  631;  Hoskins  v  State,  11  Ga.  92;  Engleman  v.  State,  2  Carter 
(Ind.),  91  ;  Johnson  v.  State,  29  Ala.  62  ;  State  v.  Kibby,  7  Mo.  317  ;  Baker  v. 
State,  4  Pike,  56  ;  Orr  v.  State,  18  Ark.  540.  See,  however,  contra,  when 
punishments  differ  in  character,   Norvell  i\  State,  50  Ala.  174. 

The  U.  S.  Revised  Stats.  §  1024,  provides  that  charges  which  may  be  joined 
in  one  indictment  shall  be  joined,  or  may  be  consolidated.  Li  misdemeanors, 
the  joinder  of  several  ofi'ences  will  not  vitiate  the  prosecution  in  any  stage. 
Young  V  R.,  3  T.  R.  105  ;  R.  v.  Jones,  2  Camp.  132  ;  R.  u.  Benfield,  2  Burr. 
984;  R.  V.  Kingston,  2  East,  468;  U.  S.  v.  Peterson,  1  W.  &  M.  305;  U.  S. 
V.  Porter,  2  Cranch.  C.  C.  60  ;  Peoples.  Costello,  1  Denio,  83  ;  Harman  v.  Com., 
12  S.  &  R.  69;  Com.  v.  Gillespie,  7  S.  &  R.  476;  WeinzorpHin  v.  State,  7 
Blackf.  186;  State  r.  Gummer,  22  Wis.  441;  Quinn  v.  State,  49  Ala.  353; 
State  V.  Randle,  41  Tex.  292  ;  Wh.  Cr.  PL  &  Pr.  §  293.  See  Wh.  Cr.  L.  8th 
ed.  §  978.  In  R.  v.  Broughton,  1  Trem.  P.  C.  Ill,  the  indictment  charged 
no  less  than  twenty  distinct  acts  of  extortion.  That  in  R.  v.  Sillern,  2  H.  & 
C.  431,  hereafter  noticed,  contained  ninety-five  counts.  The  indictment  against 
]\Iayor  Hall,  tried  in  New  York,  October,  1872,  contained  four  counts  for  each 
of  lil'ty-five  ditlerent  acts,  containing  two  hundred  and  twenty  counts  in  all.  In 
felonies  cognate  offences  may  be  thus  joined,  with  a  right  on  part  of  the  de- 
fendant of  requiring  the  prosecutor  to  elect.  Wh.  Cr."  PL  &  Pr.  §  290.  A 
misdemeanor  may  in  like  manner  and  Avith  the  same  limitations  be  joined  with  a 
felony.     lb.  §  289. 

After  a  general  verdict  of  guilty,  it  is  no  objection  to  an  indictment,  on  motion 
in  arrest,  that  ofi'ences  of  different  grades  and  requiring  difl'erent  punishments  are 
charged  in  the  different  counts.  R.  v.  Ferguson,  6  Cox  C.  C.  454  ;  U.  S.  v. 
Stetson,  3  ^\\  &  M.  164;  State  v.  Hood,  51  Me.  363;  Carlton  v.  Com.  5  Met. 
632  ;  Kane  v.  People,  8  Wend.  203  ;  Com.  v.  Birdsall,  69  Penn.  St.  482  ;  Stone 
V.  State,  1  Spencer,  404;  Moody?'.  State,  1  AV.  Va.  337;  State  v.  Speight,  69 
N.  C.  72;  State  v.  Reel,  80  N.  C.  442;  Covey  r.  State,  4  Port.  186;  ^\'ll.  Cr. 
PL  &  Pr.  §§  737-40,  771,  910.  There  is  also  high  authority,  to  tlie  effect  that' 
when  there  is  a  verdict  of  guilty  on  each  of  a  series  of  counts,  there  ma}'  be  a  spe- 
cific sentence  imposed  on  each  (Ibid.  §§  908-10)  ;  thougli  it  is  otherwise  in  respect 
to  counts  which  are  defective.      Ibid.  §  771  ;   Adams  v.  State,  52  Ga.  565. 

Every  cautious  pleader  will  insert  as  many  counts  as  Avill  be  necessary  to  pro- 
vide for  every  possible  contingency  in  the  evidence;  and  this  the  hiw  i)ermits. 
Thus  lie  may  vary  the  ownership  of  articles  stolen,  in  larceny  (State  v.  Nelson, 
29  jNIe.  329;  Com.  v.  Dobbin,  2  Parsons,  380);  of  houses  burned,  in  arson  (II. 
I'.  Trueman,  8  C.  &  P.  727;  Newman  i\  State,  14  Wis.  393);  or  the  fatal  in- 
strument and  other  incidents,  in  iioniicide.  See  Wh.  Cr.  L.  Stli  ed.  §  540  ; 
Hunter  v.  State,  40  N,  J,  L.  495. 

31 


(2)  GENERAL    FRAME    OF    INDICTMENT. 

The  reason  for  tliis  is  thus  excellently  stated  by  Chief  Justice  Shaw  :  — 

"To  a  person  unskilled  and  unpractised  in  legal  proceedings,  it  may  seem 
strange  that  several  modes  of  death,  inconsistent  with  each  other,  should  be 
stated  in  the  same  document ;  but  it  is  often  necessary,  and  the  reason  for  it, 
when  explained,  will  be  obvious.  The  indictment  is  but  the  charge  or  accusa- 
tion made  by  the  gran<l  jury,  with  as  much  certainty  and  precision  as  the  evi- 
dence before  them  will  Avarrant.  They  may  be  well  satisfied  that  the  homicide 
was  committed,  and  yet  the  evidence  before  them  leave  it  somewhat  doubtful  as 
to  the  mod(!  of  death  ;  but,  in  order  to  meet  the  evidence  as  it  jnay  finally  appear, 
they  are  very  properly  allowed  to  set  out  the  mode  in  different  counts;  and  then 
if  any  one  of  them  is  proved,  supposing  it  to  be  also  legally  formal,  it  is  suflicient 
to  support  the  indictment.  Take  the  instance  of  a  murder  at  sea :  a  man  is 
struck  down,  lies  some  time  on  the  deck  insensible,  and  in  that  condition  is 
thrown  overboard.  The  evidence  proves  the  certainty  of  a  homicide,  by  the 
blow  or  by  the  drowning,  but  leaves  it  uncertain  by  which.  That  would  be  a  fit 
case  for  several  counts,  charging  a  death  by  a  blow,  and  a  death  by  drowning, 
and  perhaps  a  third,  alleging  a  death  by  the  joint  results  of  both  causes  com- 
bined." Jiemis's  Webster  case,  471  ;  S.  C,  5  Cusli.  533.  See  also  State  v. 
Johnson,  10  La.  An.  R.  45G  ;   U.  S.  v.  Pirates,  5  Wheat.  184. 

How  generally  the  same  practice  e.xists  in  England  may  appear  from  the  very 
pertinent  inquirj-  of  Alderson,  B.,  in  a  recent  case  :  "  AVhy  may  there  not  be  as 
m;iny  counts  for  receiving  as  there  are  for  stealing — one  for  each  ?  It  is  really 
only  one  oifence,  laying  the  property  in  different  persons.  It  is  one  stealing,  and 
one  receiving ;  and  because  there  was  some  doubt  as  to  the  person  to  whom  the 
property  really  belonged,  the  property  is  laid  five  different  ways.  If  a  late 
learned  judge  had  drawn  the  indictment,  you  would  very  likely  had  it  laid  in 
fifty  more."  R.  r.  Beeton,  2  Car.  &  Kir.  961,  Alderson,  B.  To  the  same 
efi'ect  see  Beasley  u.  People,  89  III.  571  ;  People  v.  Thompson,  28  Cal.  214. 
See,  as  to  verdict  to  be  taken  In  such  cases,  Wh.  Cr.  PI.  &  Pr.  §  740. 

"  Where  the  felonies  are  of  the  same  general  nature,  and  supported  by  evi- 
dence of  a  similar  kind,  and  the  punishment  to  be  awarded  is  the  same  in  its 
nature,  the  more  common  practice  is  to  try  the  whole  indictment  by  the  same 
jury.  If  there  is  any  danger  that  such  trial  will  operate  to  the  prejudice  of  the 
defendant,  the  court  is  authorized  to  direct  the  prosecutor  to  elect  on  which  count 
he  will  proceed."     Lord,  J.,  Pettes  v.  Com.,  126  Mass.  245. 

From  the  report  of  the  English  Commissioners  of  1879  we  take  the  fol- 
lowing:— 

''  The  Draft  Code  next  deals  with  the  subject  of  indictments,  the  object  being 
to  reduce  them  to  what  is  really  necessary  for  the  purposes  of  justice.  The  law 
as  it  at  present  stands  is  in  the  form  of  objectionable  unwritten  rules,  qualified  by 
several  wide  exceptions  which  modify  some  of  their  defects.  These  general  rules 
require  the  greatest  minuteness  in  many  matters,  which  need  not  be  referred  to 
here.  Two  rules,  however,  may  be  specially  mentioned:  (1)  Indictments  must 
not  be  double,  and  cannot  be  in  the  alternative  ;  each  count  must  charge  one 
oflence  and  no  more  :  (2)  All  material  averments  must  be  proved  as  laid.  Al- 
though these  rules  have  been  considerably  relaxed  in  practice,  the  effect  of  them 
is  that  indictments  run  to  a  most  inordinate  length,  and  become  at  once  so  long 
and  so  intricate  that  it  is  hardly  possible  to  understand  them,  and  that  practically 
no  one  reads  them  but  the  counsel  who  draw  and  the  clerks  who  copy  them. 

"The  method  Employed  is  to  take  a  section  of  an  act  of  parliament  and  draw 
a  series  of  counts,  each  charging  one  of  the  offences  which  the  section  creates  ; 
and  as  a  single  section  often  creates  many  offences  hardly  differing  from  each 
other  except  by  very  slight  shades  of  meaning,  counts  are  inordinately  multiplied 
in  this  manner.  For  instance,  in  R.  v.  Sillem  (2  H.  &  C.  431),  an  information 
(which  might  have  been  an  indictment)  charged  certain  persons  in  substance 
with  having  equipped  for  the  Confederate  States,  then  at  war  with  the  United 
States,  a  siiip  called  the  Alexandria.  The  information  was  framed  upon  59  Geo. 
3,  c.  69,  and  contained  ninetv-five  counts.     The  first  count  charged  an  equipping 

32 


JEOFAILS    AND   AMENDMENT.  (2) 

•with  intent  that  the  ship  should  be  employed  by  certain  foreign  states,  styling 
themselves  the  Confederate  States,  with  intent  to  cruise  against  the  Republic  of 
the  United  States.  The  second  count,  instead  of  the  Republic  of  the  United 
States,  mentioned  the  citizens  of  the  Republic  of  the  United  States.  The  third 
count  omitted  all  mention  of  the  Confederate  States,  and  called  the  United 
States  the  Republic  of,  etc.  The  fourth  count  was  like  the  third,  with  the  ex- 
ception of  returning  to  the  expression  'citizens,'  etc.,  after  giving  various  names 
to  the  United  States  and  Coni'ederate  States  in  the  first  eight  counts,  eight  other 
counts  were  added  substituting  'furnish'  for  'equip.'  Eight  more  subi^tituted 
'fit  out'  for  'furnish.'  In  short,  the  indictment  contained  a  number  of  counts 
obtained  by  combining  every  operative  verb  of  the  section  on  which  it  was 
founded  with  all  the  other  operative  words." 

Lord  Campbell  in  R.  v.  Rowlands,  2  Den.  C.  C.  .38,  and  Lord  Denman,  in 
R.  V.  O'Connell,  11  CI.  &  F.  .374,  censure  the  undue  multiplication  of  counts; 
though  under  common  law  pleading,  this,  in  complicated  cases,  cannot  be 
avoided.  To  split  the  charge  in  distinct  indictments  would  unduly  accumulate 
costs,  and  would  expose  the  prosecution  to  an  application  to  consolidate. 

A  verdict  of  guilty  on  four  counts,  charging  the  murder  to  have  been  commit- 
ted with  a  knife,  a  dagger,  a  dirk,  and  a  dirk-knife,  is  not  repugnant,  incon- 
sistent, or  void,  since  the  same  kind  of  death  is  charged  in  all  the  counts.  Don- 
nelly V.  State,  2  Dutch.  (N.  J.)  4C3;  affirmed  in  error,  2  Dutch.  (N.  J.)  GOl. 
To  same  effect  see  Merrick  i'.  State,  63  Ind.  637. 

As  both  in  civil  and  criminal  pleading  two  counts  charging  the  same  thing 
would  be  bad  on  special  demurrer  for  duplicity — though  the  fault  in  civil  plead- 
ing is  cured  by  pleading  over — it  has  been  usual,  by  inserting  the  word  "  other" 
in  a  second  count,  to  obviate  this  difficulty,  through  the  fiction  that  the  cause  of 
action  thus  stated  is  new  and  distinct.  When  two  counts  setting  out  the  same 
offences  occur  judgment  will  be  arrested.  Campbell  v.  R.,  11  Ad.  &  El.  N.  S. 
800. 

Even  according  to  the  strictest  practice,  the  omission  in  an  indictment,  con- 
taining two  counts,  of  an  averment  that  they  are  for  different  offences,  is  cured 
by  a  verdict  of  not  guilty  on  one  of  the  counts,  or  the  entry  of  a  nolle  prosequi 
on  that  count.     Com.  w.' Holmes,  103  Mass.  440  (Ames,  J.',  1869). 

The  relative  "said,"  used  in  one  of  the  subsequent  counts  of  an  indictment 
referring  to  matter  in  a  previous  count,  is  always  to  be  taken  to  refer  to  the 
count  immediately  preceding  where  the  sense  of  the  whole  indictment  does  not 
forbid  such  a  reference.     Sampson  v.  Com.,  5  W.  &  S.  385. 

Where  the  first  count  of  an  indictment  is  bad,  a  subsequent  count  may  be  sus- 
tained, even  though  it  refers  to  the  first  count  for  some  allegations,  and  without 
repeating  them.  Com.  v.  Miller,  2  Parsons,  480.  See  State  v.  Lea,  1  Cold. 
(Tenn.)"l75.  Generally,  however,  one  bad  count  cannot  help  another  bad 
count,  which  is  defective  in  a  distinct  way.     State  v.  Longley,  10  Ind.  482. 

Even  in  good  counts,  it  is  unsafe  to  attempt  to  supply  a  material  averment  by 
mere  reference  to  a  preceding  count.  Time  and  place  may  be  thus  implied,  but 
not,  it  seems,  descriptive  averments  which  enter  into  the  vitals  of  the  offence. 
See  R.  V.  Dent,  1  C.  &  K.  249  ;  2  Cox  C.  C.  354 ;  R.  u.  Martin,  9  C.  &  P.  213  ; 
State  V.  Nelson,  29  Me.  329  ;  Sampson  v.  Com.,  5  W.  &  S.  385  ;  State  v.  Lyon, 
17  Wis.  237  ;  Keech  v.  State,  15  Fla.  591  ;  but  see  Wh.  Cr.  PI.  &  Pr.  §§  292  et 
seq.i  as  to  practice  in  counts  for  receiving  stolen  goods. 

There  may  be  cases,  it  seems,  in  which  counts  may  be  transposed  after  verdict. 
R.  V.  Downing,  1  Den.  C.  C.  52. 

Statutes  of  Jeofails  and  amendment  for  the  cure  of  mere  technical  flaws,  have 
been  adopted  in  England  and  in  most  of  the  States  in  the  American  Union.  In 
the  U.  S.  courts  no  indictment  "shall  be  affected  by  reason  of  any  defect  or  im- 
perfection in  matter  of  form  only,  wliich  shall  not  tend  to  the  prejudice  of  the 
defendant."  This  does  not  include  any  essential  description.  Lowell,  J.,  U.  S. 
t;.  Conant,  9  Report.  36. 

VOL.  I. — 3  33 


(2) 


GENERAL   FRAME    OP   INDICTMENT. 


Under  the  English  statutes  the  following  rulings  are  quoted  in  Roscoe's  Cr. 
Ev.  p.  206  :— 

"In  R.  V.  Frost,  1  Dears.  C.  C.  R.  427  ;  S.  C,  24  L.  J.  M.  C.  61,  the  pris- 
oners were  charged  in  an  indictment  with  having  by  night,  in  pursuit  of  game, 
entered  the  lands  of  George  William  Frederick  Charles,  Duke  of  Cambridge  ; 
on  the  trial  a  witness  proved  that  George  William  were  two  of  the  duke's  Chris- 
tian names,  and  that  he  had  others  ;  no  proof  was  given  what  they  were.  The 
prosecutor  prayed  an  amendment  of  the  indictment  by  striking  out  the  names 
'  Frederick  Charles.'  This  the  court  refused,  and  left  the  case  to  the  jury,  who, 
being  satisfied  as  to  the  identity  of  the  duke,  convicted  the  pl*isoners.  On  a  case 
reserved,  the  Court  of  Criminal  Appeal  quashed  the  conviction.  Parke,  B., 
said  :  '  The  Court  of  Quarter  Sessions  have  a  power  of  amending  given  them  by 
the  statute  14  &  15  Vict.  c.  100,  s.  1,  but  they  have  a  discretion,  they  are  not 
bound  to  allow  an  amendment.  Having  omitted  to  amend  at  the  trial,  they  can- 
not amend  now.  If  they  had  asked  us  whether  they  ought  to  have  done  so,  it  is 
clear  that,  upon  the  evidence  before  them,  they  were  perfectly  right  in  refusing 
to  make  the  amendment  prayed  for;  but  that  they  would  have  been  equally 
wrong  in  refusing  to  amend  had  the  amendment  asked  for  been  to  strike  out  all 
the  Clu'istian  names  of  the  Duke  of  Cambridge,  who  was  described  in  the  indict- 
ment as  George  William  Frederick  Chai-les,  Duke  of  Cambridge.  According  to 
the  usual  rule,  the  prosecutor  must  prove  all  matter  of  description  alleged,  though 
it  was  not  necessary  to  allege  it.  The  proper  course  Avould  have  been  for  them 
to  have  found  that  the  person  mentioned  was  a  person  who  had  the  title  of  Duke 
of  Cambridge,  and  to  have  omitted  all  the  Christian  names.' 

"  It  has  been  held  that  an  indictment  for  an  attempt  to  murder  A.  W.  may  be 
amended  by  substituting  for  A.  W.  '  a  certain  female  child  whose  name  is  to  the 
said  jurors  unknown,'  although  the  act  refers  only  to  variances  In  the  name,  or 
Christian  or  surname.     R.  v.  Welton,  9  Cox  C.  C.  297. 

"An  indictment  charged  D.  T.  as  a  receiver  of  stolen  goods,  'he,  the  said 
A.  B.,  knowing  them  to  have  been  stolen ;'  upon  verdict  of  guilty  he  moved  in 
arrest  of  judgment,  but  the  Court  of  Quarter  Sessions  struck  out  the  words  '  A. 
B.'  and  substituted  '  D.  T.'  It  was  held  by  the  Court  of  Criminal  Appeal  that 
the  court  had  no  power  to  amend  after  verdict,  so  as  to  alter  the  finding  of  the 
jury,  and  that  the  prisoner  was  entitled  to  move  in  ai'rest  of  judgment.  R.  v. 
Larkin,  Dears.  C.  C.  365  ;   23  L.  J.  M.  C.  125. 

"  On  an  indictment  against  the  defendant  for  obstructing  a  footway  leading 
from  A.  to  G.,  It  appeared  that  the  so-called  footway  was  for  half  a  mile  from  its 
commencement,  as  described  in  the  Indictment,  a  carriage-way ;  the  obstruction 
was  in  the  jjart  beyond.  The  Court  of  Queen's  Bench  held  that  this  was  a  mis- 
description, which  ought  to  be  amended  under  the  14  &  15  Vict.  c.  100,  s.  1. 
R.  V.  Sturge,  3  E.  &  B.  734  ;   77  E.  C.  L.  R.  ;   S.  C,  23  L.  J.  M.  C.  172. 

"On  an  indictment  for  stealing  19s.  6cZ.  the  court  held  that  the  Indictment 
might  be  amended  by  altering  the  words,  '  nineteen  and  sixpence'  to  '  one  sov- 
ereign.' R.  V.  Gumble,  42  L.  J.  M.  C.  7  ;  12  Cox  C.  C.  (C.  C.  R.)  248  ;  and 
see  R.  V.  Bird,  12  Cox  C.  C.  (C.  C.  R.)  257." 

As  to  how  far  verdict  cures,  see  Wh.  Cr.  PI.  &  Pr.  §  759. 

Merely  clerical  errors  may  be  disregarded  in  eiTor,  or  In  motions  of  arrest  of 
judgment     Wh.  Cr.  PI.  &  Pr.  §  273. 

In  some  jurisdictions  it  is  provided  that  as  to  certain  offences  certain  prescribed 
forms  shall  be  sufficient.  See  as  to  liquor  prosecutions,  Wh.  Cr.  L.  8th  ed.  § 
1530;  and  see  State  v.  Comstock,  27  Vt.  553  ;   Hewitt  v.  State,  25  Tex.  722. 

As  to  waiver  of  constitutional  rights,  see  Wh.  Cr.  L.  8th  ed.  §  145  a;  Wh. 
Cr.  PL  &  Pr.  §  733 

When  a  constitutional  provision  exists,  formulating  the  common  law  rule,  that 
the  defendant  Is  entitled  to  notice  In  the  Indictment  of  the  charge  against  him, 
we  can  adopt  the  following  conclusions  :  — 

1.  Statutes  which  merely  facilitate  the  pleading  In  a  case,  such  as  those  pro- 
viding that  technical  objections  are  to  be  taken  by  demurrer,  or  that  defects  of 

34 


JEOFAILS    AND    AMENDMENT.  (2) 

process  must  be  met  by  motion  to  quash,  or  that  formal  statements  as  to  time, 
place,  tenor,  name,  and  value,  are  open  to  amendment  on  trial,  are  constitu- 
tional. State  V.  Comstock,  27  Vt.  553  ;  Com.  v.  HoUey,  3  Gray,  458  ;  Brown 
V.  Com.,  78  Penn.  St.  122;  Cora.  v.  Seymour,  2  Brewst.  567;  Cochrane  v. 
State,  9  Md.  400;  Trimble  v.  Com.,  2  Va.  Cas.  143  ;  Lasure  v.  State,  19  Ok. 
St.  44;  People  v.  Cook,  10  Mich.  164;  Marvin  v.  People,  26  Mich.  298;  Mc- 
Laushlin  v.  State,  45  Ind.  338;  Rowan  v.  State,  30  Wis.  129;  State  v. 
Schricker,  29  Mo.  265  ;  State  v.  Craighead,  32  Mo.  561  ;  Noles  v.  State,  24 
Ala.  672 ;  Thompson  v.  State,  25  Ala.  41  ;  Rocco  v.  State,  37  Miss.  357  ;  State 
V.  Hart,  4  Ired.  24t  ;  State  v.  Mullen,  14  La.  An.  570;  People  v.  Kelly,  6  Cal. 
210;   State  u.  Manning,  14  Tex.  402. 

2.  Statutes  which  authorize  forms  which  give  no  substantial  notice  of  the  of- 
fence, or  which  permit  radical  amendments  after  bill  found,  are  unconstitutional. 
State  V.  Learned,  47  Me.  426  ;  People  v.  Campbell,  4  Parker  C.  R.  386 ;  Com. 
V.  Buzzard,  5  Grat.  694;  State  v.  Wilburn,  25  Tex.  738  ;  State  v.  Daugherty, 
30  Tex.  360. 

This  question,  supposing  the  constitutional  provisions  are  mere  expressions  of 
the  common  law  in  this  respect,  is  discussed  in  Bradlaugh  v.  R.,  L.  R.  3  Q.  B. 
D.  607;   14  Cox  C.  C.  68. 

As  to  effect  of  verdict  in  curing  formal  errors,  see  Wh.  Cr.  PL  &  Pr.  §§  400, 
759. 

In  Pennsylvania  it  is  said  that  the  name  of  the  owner  in  larceny  can  be  stricken 
out  and  "persons  unknown"  inserted  Com.  v.  O'Brien,  2  Brewster,  566.  See 
Phillips  I.'.  Com.,  44  Penn.  St,  197.  And  see,  to  same  general  eifect,  Mulrooney 
V.  State,  26  Oh.  St.  326.  As  to  other  amendments,  see  State  v.  Arnold,  50  Vt. 
731  ;   People  v.  Mott,  34  Mich.  80;  Garvin  v.  State,  52  Miss.  207. 

35 


(3)  COMMENCEMENTS    AND    CONCLUSIONS 


CHAPTER  III. 

COI^IMENCEMENTS  AND  CONCLUSIONS  IN  THE  FEDERAL  AND 

STATE  COURTS. 

I.   FEDERAL  COURTS.(«) 

(3)  Commencement  in  District  of  3Iassachusetts,  where  the  offence 
was  committed  on  hoard  of  an  American  vessel  within  the 
jurisdiction  of  a  foreign  state. 

United  States  of  America. 

District(6)  of  Massachusetts,  to  wit  {stating  the  court). 

The  jurors  of  the  United  States  of  America,  within  and  for 
the  district  aforesaid,  upon  their  oath  present  that  A.  B.,  late 
of  Boston,  in  said  district,  mariner,  on,  etc.  {stating  date),  *  in 
and  on  board  of  the  barque  Eliza,  then  lying  within  the  juris- 
diction of  a  foreign  state  or  sovereign,  to  wit,  at  one  of  the 
islands  called  the  ^Navigator's  Island,  in  the  South  Pacific,  the 
said  barque,  then  and  their  being  a  ship  or  vessel  of  the  United 
States,  belonging((?)  to  certain  citizens  of  the  United  States, 
whose  names  are  to  this  inquest  unknown,  etc. 

(fi)  The  criminal  pleading  of  the  United  States  courts,  like  the  civil  pleading, 
IS  governed,  unless  there  be  special  exception  by  federal  statute,  by  the  practice 
of  the  States  in  which  the  particular  courts  are  situated.  This  is  illustrated  by 
the  forms  of  commencements  and  conclusions  given  in  the  text. 

(/;)  The  district  must  be  set  forth  according  to  its  jurisdiction,  as  settled  by  act 
of  Congress.  Thus  where  an  indictment  in  the  Circuit  Court  for  the  Eastern 
District  of  Pennsylvania,  commenced  "in  the  Circuit  Court  of  the  United  States, 
etc.,  in  and  for  the  District  of  Pennsylvania,"  Judge  Washington  lield  that  it 
should  appear  by  the  record  that  the  jury  were  sworn  to  inquire  for  the  district 
over  which  the  court  had  jurisdiction  ;  and  as  by  the  act  of  20th  April,  1818, 
Pennsylvania  was  divided  into  two  districts,  and  as  the  court  in  which  the  indict- 
ment was  found  had  only  jurisdiction  over  one  of  these  districts,  the  judgment 
would  have  to  be  arrested.     U.  S.  v.  Wood,  2  Wheel.  C.  C.  .325. 

(c)  In  several  of  the  precedents  the  words  "  in  whole  or  in  part"  are  here 
introduced,  but  this  alternative  expression  is  questionable. 

36 


IN  THE  FEDERAL  AND  STATE  COURTS.  (7) 

(4)  Same  where  the  offence  was  committed  on  an  American  ship 

within  the  jurisdiction  of  the  United  States. 

Same  as  above  down  to  mark  *,  and  then  proceed :  on  the  waters 
of  Long  Island  Sound,  the  same  being  an  arm  of  the  sea,  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
and  out  of  the  jurisdiction  of  any  particular  State,  in  and  on 
board  of  the  steamer  M.,  the  same  then  and  there  being  an 
American  ship  or  vessel,  etc. 

(5)  Same  where  the  offence  was  committed  on  the  high  seas  on  hoard 

of  an  American  vessel. 

Same  as  above  down  to  mark  *,  and  then  proceed :  upon  the  high 
seas  within  the  admiralty  and  m,aritime  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  any  particular 
State,  and  within  the  jurisdiction  of  this  court,  on  board  of  a 
certain  vessel,  to  wit,  a  schooner  called  the  William  Wirt,  then 
and  there  belonging  to  a  citizen  or  citizens  of  the  United  States 
to  the  said  inquest  unknown,  of  which  said  vessel  a  certain 
J.  S.  S.  was  then  and  there  master,  etc. 

(6)  Same  where  offence  was  committed  on  high  seas  on  boar^d  a  vessel 
whose  name  was  unknown,  belonging  to  an  American  citizen  whose 
name  is  given. 

Same  as  above  down  to  *,  and  then  proceed :  upon  the  high  seas 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  State,  and 
within  the  jurisdiction  of  this  court,  on  board  of  a  certain  vessel, 
to  wit,  a  vessel  the  name  whereof  is  to  the  jurors  unknown,  then 
and  there  belonging  to  a  citizen  of  the  United  States,  to  wit, 
one  J.  P.  Y.,  late  of  the  district  aforesaid,  etc. 

(7)  Same  where  offence  was  committed  by  a  person  who  belonged  to  a 
vessel  owned  by  American  citizens,  whose  names  are  known,  the 
vessel  being  at  the  time  in  the  jurisdiction  of  a  foreign  state. 

Same  as  above  down  to  *,  and  then  proceed:  within  the  admi- 
ralty and  maritime  jurisdiction  of  the  United  States,  on  board 
of  a  certain  vessel,  to  wit,  a  sloop  called  the  C.  W.,  then  and 
there  belonging  to  S.  P.  W.,  J.  C.  B.,  and  N.  F.,  citizens  of  the 

37 


(11)  COMMENCEMENTS    AND   CONCLUSIONS 

United  States,  while  lying  in  a  place,  to  wit,  Great  Harbor  in 
Long  Island,  one  of  the  Bahama  Islands  within  the  jurisdiction 
of  a  certain  foreign  sovereign,  to  wit,  the  king  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  a  certain  J.  P.  M.,  late 
of  the  district  aforesaid,  mariner,  then  and  there  being  a  person 
belonging  to  the  company  of  the  said  vessel,  did,  etc. 

(8)  Same  where  offence  was  committed  in  navy  yard. 

Same  as  above  down  to  *,  and  then  proceed :  at  and  within  the 
navy  yard  adjoining  the  in  the  county  of  in  the 

district  of  aforesaid,  the  site  of  which  said  navy  yard 

had  been,  before  the  said  day  of  in  the  year 

last  aforesaid,  ceded  to  the  said  United  States,  and  was  on  the 
said  last-mentioned  day  then  and  there  under  the  sole  and 
exclusive  jurisdiction  of  the  said  United  States,  etc. 

(9)  Same  where  offence  was  committed  07i  ground  occupied  for  an 
armory  or  arsenal. 

Sayne  as  above  down  to  *,  and  then  proceed :  at  the  said  town  of 
Springfield,  on  land  belonging  to  the  said  United  States,  to  wit, 
on  land  occupied  for  an  armory  or  arsenal,  and  for  purposes 
connected  therewith,  out  of  the  jurisdiction  of  any  particular 
State  of  the  said  United  States,  and  within  the  jurisdiction  of 
the  said  United  States,  etc.         , 

(10)  Commencement  in  Southern  District  of  New  York. 

Southern  District  of  New  York,  ss.  The  jurors  of  the  United 
States  of  America,  in  and  for  the  district  aforesaid,  on  their  oath 
present  that  A.  B.,  late  of  the  City  and  County  of  New  York, 
in  the  district  aforesaid,  heretofore  did,  etc.  {stating  the  date,  and 
proceeding  as  in  foregoing  forms). 

(11)  Coynmencement  in  Eastern  District  of  Pennsylvania. 

In  the  Circuit  {or  District)  Court  of  the  United  States  in  and 
for  the  Eastern  District  of  Pennsylvania,  of  Sessions,  in 

the  year  of  our  Lord,  etc. 

Eastern  District  of  Pennsylvania,  ss.  The  grand  inquest  of 
the  United  States  of  America,  Inquiring  for  the  Eastern  District 
of  Pennsylvania,  on  their  oaths  and  affirmations  respectively,  do 
38 


IN  THE  FEDERAL  AND  STATE  COURTS.  (16) 

present  that  A.  W.  H.,  late  of  the  district  aforesaid,  mariner,  on 
the  {slating  date,  and  proceeding  as  in  foregoing  counts). 

(12)  Commencement  in  District  of  Virginia. 

In  the  Circuit  (or  District)  Court  of  the  United  States  in  and 
for  the  Virginia  District  of,  etc.  {as  in  last  form). 

The  grand  inquest  of  the  United  States  of  America,  for  the 
Virginia  District,  upon  their  oath  do  present  that  A.  B.,  late  of 
'the  State  of  Kew  York  and  Cit j  of  New  York,  attorney  at  law, 
on,  etc.  {stating  the  date,  and  proceeding  as  in  foregoing  counts). 

(13)  Conclusion  in  District  of  Massachusetts. 

Against  the  peace  and  dignity(<:Z)  of  the  said  United  States, 
and  contrary  to  the  form  of  the  statute  of  the  United  States  in 
such  case  made  and  provided.(e) 

(14)  Conclusion  in  Southern  District  of  Ncio  York. 

Against  the  peace  of  the  said  United  States  of  America  and 
their  dignity,  and  against  the  form  of  the  statute  of  the  said 
United  States  in  such  case  made  and  provided. 

(15)  Conclusion  in  Eastern  District  of  Pennsylvania. 

Contrary  to  the  form  of  the  act  of  Congress  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  United 
States.  • 

(16)  Conclusion  in  District  of  Virginia. 

Against  the  constitution,  peace,  and  dignity  of  the  said  United 
States,  and  against  the  form  of  the  act  of  the  Congress  of  the 
said  United  States  in  such  case  made  and  provided. (/) 

[  Where  the  offence  ivas  committed,  loithin  the  admiralty  and  mari- 
time jurisdiction  of  the  United  States,  jurisdiction  over  the  offender 

(f/)  But  see  U.  S.  v.  Boling,  4  Craneh,  C.  C.  11.  579,  where  it  was  held  that 
the  conclusion  should  be  against  the  "government"  of  the  United  States. 

(e)  U.  S.  V.  La  Coste,  2  Mason,  129  ;  U.  S.  v.  Smith,  2  ISIason,  14.';  ;  but  see 
U.  S.  V.  Crittenden,  1  Hemp.  61.  Indictments  in  the  United  States  adapt  them- 
selves in  their  conclusion,  as  well  as  their  other  formal  ])arts,  to  the  practice  of 
the  courts  of  the  States  Avithin  whose  territorial  limits  they  are  ibund,  always 
retaining  the  contra  formani  xtatuti  as  Avell  as  the  contra  jyacem,  there  being  no 
common  law  offences  against  the  United  States. 

(/)   The  form  in  the  text  was  used  in  Burr's  case. 

39 


(21)  COMMENCEMENTS    AND    CONCLUSIONS 

attaches  to  tlie  j)articular  district  to  ichich  he  was  brought,  or  in  which 
he  was  apprehoided.     In  order  to  show  Jurisdiction,  it  is  necessary/ 

for  the  grand  jury  to  jind  an  additional  cotmt  in  all  such  cases,  as 

follows :] 

(17)  Final  count  where  the  offender  was  first  ap}j?rhendcd  in  the 
particidar  district. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid  {or  in  Penn- 
sylvania, on  their  oaths  and  affirmations  aforesaid),  do  further 
present,  that  the  district  of  in  the  circuit  is 

the  district  and  circuit  in  which  the  said  was  first  appre- 

hended for  the  said  otlence.(^) 

(18)  Final  count  where  the  offender  loas first  brought  into  the 
particular  district. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid  {or  in  Penn- 
sylvania, on  their  oaths  and  affirmations  aforesaid),  do  further 
present,  that  the  district  of  in  the  circuit  is  the 

district  and  circuit  into  which  the  said  was  first  brought 

for  the  said  oftence. 

II.    STATE  COURTS. 

(19)  31aine.     Commencement. 

State  of  Maine,  Kennebec,  to  wit: 

At  the  court,  etc.,  begun,  etc.  {stating  style  of  court),  the  jurors 
for  the  State  of  Maine  upon  their  oath  do  present  that,  etc. 

(20)  Conclusion  at  common  law. 
Against  the  peace  of  the  said  State.(/i) 

(21)  For  a  statutory  offence. 
Contrarj^  to  the  form  of  the  statute  in  such  case  made  and 

(g)  See  under  the  heads  of  jiiracy,  etc.,  the  several  methods  used  of  stating 
the  jurisdiction  in  tlie  respective  circuits.  The  one  in  tlie  text  is  that  used  in 
New  York,  and  in  connection  witli  that  ibllowing  it,  appears  to  me  to  be  the  most 
formal.  In  some  of  the  forms  in  the  last-named  circuit  the  concluding  averment 
is,  "  was  first  brought  and  apprehended." 

(h)  Browne's  case,  1  Greenl.  177;  State  i".  Soule,  20  Me.  R.  19;  Bufman's 
case,  8  Greenl.  ll.*?. 

40 


IN    THE    FEDERAL    AND    STATE   COURTS.  (25) 

provided,  and  against  the  peace  (or  peace  and  dignity)  of  the 
said  State. 

(22)  New  Hampshire.     Commencement. 

State  of  New  Hampshire,  ss. 

At  the  Court  of  Common  Pleas  holden  at  within  and 

for  the  County  of  aforesaid,  on  the  Tuesday  of 

in  tlie  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
the  jurors  of  the  State  of  Is'ew  Hampshire,  upon  their 
oath,  present,  etc. 

(23)  Conclusion  for  a  common  law  offence. 
Against  the  peace  and  dignity  of  the  State.(j) 

(24)  For  a  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  State.(J) 

(25)  Vermont.     Commencement. 

State  of  Vermont.     Windsor  County,  ss. 

Tiie  grand  jurors  within  and  for  the  body  of  the  County  of 
"Windsor  aforesaid,  now  here  in  court  duly  empanelled  and 
sworn,  upon  their  oath  present,  etc.(A-) 

(i)  The  conclusion,  "against  the  peace  and  dignity  of  our  said  State,"  suffi- 
ciently complies  with  the  constitutional  provision  that  the  conclusion  shall  be 
"  against  the  peace  and  dignity  of  the  State."      State  v.  Kean,  10  N.  Hamp.  347. 

(j)  Information. 

State  of  New  Hampshire,  ss. 

At  the  Court  of  Common  Pleas  holden  at  on  the  Tuesday  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty-  .  Be  it  re- 
membered that  Lyman  B.  Walker,  Esquire,  Attoi-ney-General  for  the  State  afore- 
said, being  here  in  court,  gives  the  Court  to  understand  and  be  informed,  that, 
etc.  [stating  offence).,  contrary  to  the  form  of  the  statute  in  such  case  nuule  and 
provided,  and  against  the  peace  and  dignity  of  the  said  State.  Whereupon  the 
said  attorney-general  prays  advice  of  the  court  in  the  premises,  and  that  due 
process  of  law  may  Issue  against  the  said  in  this  behalf,  to  answer  to  the 

said  State  in  the  premises,  and  to  do  therein  what  to  law  and  justice  may  apper- 
tain. 

(Jc)  This,  as  I  am  informed  by  Mr.  AA^ashbui-n,  the  learned  reporter  of  4hc  de- 
cisions of  the  Supreme  Coui-t,  is  the  usual  form  ;  but  in  a  recent  case,  of  which  he 
has  kindly  furnished  me  with  the  sheets,  an  indictment  was  sustained,  beginning, 
"State  of  Vermont,  Chittenden  County,  ss.  The  grand  jurors  for  the  people 
of  the  State  of  Vermont  upon  tlieir  oath  present  that,"  etc.  State  v.  Nixon,  18 
Vt.  (3  Wash.)  70. 

"To  the  indictment  itself,"  said  Williams,  C.  J.,  in  an  opinion  wliich  throws 
great  light  on  this  branch  of  pleading,  "  the  first  objection  urged  is,  that  it  com- 

41 


(28)  COMMENCEMENTS    AND    CONCLUSIONS 

(26)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State. (^) 

(27)  Conclusion  for  statutory  offence. 

Contrary  to  the  form,  force,  and  effect  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of 
the  State. 

(28)  31assachusetts.     Commencement.{m) 

Commonwealth  of  Massachusetts.     Suffolk,  to  wit: 
At  the  Supreme  Judicial    Court  of  said  Commonwealth  of 
Massachusetts,  begun  and  holden  at  Boston,  within  and  for  the 

mences,  'The  grand  jurors  for  the  people  of  the  State  of  Vermont.'  This  is 
not  the  usual  form  of  the  commencement  of  indictments  in  this  State  ;  but,  never- 
theless, it  may  be  questioned  whether  it  is  not  more  con-ect  than  the  one  com- 
monly used.  The  grand  jurors  in  this  State,  as  well  as  in  Great  Britain,  are  to 
inquire  for  all  offences  in  the  county  for  which  they  are  returned.  2  Hawk.  P. 
C.  c.  25,  p.  299.  They  are  to  present  in  behalf  of  and  for  the  sovereign  power, 
which  is  considered  as  the  prosecutor  for  all  public  offences  ;  and  hence  the  style 
or  language  of  the  indictment  is  not  uniform.  In  England,  the  form  is,  '  The 
grand  jurors  ybr  OMr  iorf/ <Ae  A  !;72^  on  their  oath  present;'  in  New  York,  ''for 
the  people,'  etc.  ;  in  Massachusetts,  ^for  the  CommomceaWi.'  In  some  cases  this 
part  of  the  indictment  is  used  only  to  designate  the  jury,  who  present  as  '  The 
grand  inquest  of  the  United  States  for  the  district  of  Virginia,'  '  The  grand  jurors 
of  the  United  States  in  and  for  the  body  of  the  district  of  New  York,'  'The 
grand  jurors  within  and  for  the  body  of  the  county,'  etc.  :  and  this  latter  is  the 
form  usually  adopted  in  this  State  and  in  Connecticut.  The  better  form,  I  think, 
is  the  one  used  in  Georgia,  found  in  6  Peters,  528  :  '  The  grand  jurors  sworn, 
chosen,    and  selected  for  the  county  of  in  the  name  and  behalf  of  the 

citizens  of  Georgia.' 

"In  this  State,  when  we  wish  to  designate  the  sovereign  power,  we  usually 
say,  The  State  of  Vermont ;  but  I  apprehend  it  is  as  well  to  designate  it  by  the 
term  The  People.  Proceedings  to  take  the  forfeiture  of  grants  and  charters 
were  heretofore  directed  to  be  prosecuted  in  the  name  of  The  People  of  the 
State  ;  Slade's  St.  189  ;  and,  moreover,  in  making  a  record  of  a  case  arising  on 
an  indictment  by  a  grand  jury,  these  words  miglit  be  wholly  omitted  ;  and,  after 
the  caption,  which  sets  forth  that  the  grand  jury  were  empanelled,  etc.,  it  would 
be  sufficient  to  say  that  it  is  presented  '  that  A.  B.,'  etc.  We  cannot,  therefore, 
attach  any  importance  to  tliis  objection  to  the  indictment,  considering  it  wholly 
immaterial  whether  the  indictment  commenced  by  saying,  the  grand  jurors  for 
the  county,  or  for  the  State,  or  for  the  people  of  the  State  ;  and  that  either  mode 
would  be  conformable  to  apjjroved  forms."  State  v.  Nixon,  18  Vt.  70.  See 
also  States.  Hooker,  17  Vt.  659. 

(/)  By  the  constitution  of  Vermont,  all  Indictments  must  conclude,  "  against 
the  peace  and  dignity  of  the  State  •,"  sect.  .32,  part  ii.  In  a  common  lawotlence, 
the  conclusion  "  contra  for  mam''  is  to  be  rejected  as  surplusage.  State  v.  Phelps, 
11  Vt.  118. 

(w)   See  Com.  v.  Fisher,  7  Grav,  492. 

42 


IN  THE  FEDERAL  AND  STATE  COURTS.  (32) 

County  of  Suffolk,  on  the  first  Monday  of        in  the  year  of  our 
Lord,  one  thousand  eight  hundred  and  forty- 

The  jurors  for  the  Commonwealth  of  Massachusetts  upon  their 
oath  present,  etc. 

(29)  Conclusion  for  a  common  law  offence. 
Against  the  peace  of  said  Commonwealth. 

(30)  For  a  statutory  offence. 

Against  the  peace  of  said  Commonwealth,  and  the  form  of  the 
statute  in  such  case  made  and  provided. (n) 

(31)  Connecticut.     Commencement. 

State  of  Connecticut,  etc.     ]Srew  Haven  County,  ss. 

New  Haven,  day  of 

184  . 

To  the  Honorable  Superior  Court  of  the  State  of  Connecticut 
now  sitting  in  within  and  for  the  County  of  on 

the  Tuesday  of 

The  grand  jurors  within  and  for  said  county,  on  their  oaths 
present  and  inform,  etc. 

• 
(32)  Conclusion. 

Against  the  peace  and  contrary  to  the  statute  in  such  case 
made  and  provided,  (o) 

(n)  "Against  the  peace  and  the  statute"  has  in  Massachusetts  been  held  to 
be  sufficiently  formal  (Com.  v.  Caldwell,  14  Mass.  330);  though  "  against  the 
law  in  such  case  made  and  provided,"  has  been  held  to  be  too  general.  Com.  v. 
Stockbridge,  11  Mass.  279.  The  object  of  the  conclusion  "  against  the  statute" 
is  to  notify  the  defendant  that  the  olFence  of  which  he  is  accused,  and  the  })en- 
alty  to  which  he  may  be  subjected,  are  statutory,  and  not  as  at  common  law. 
Com.  V  Stockbridge,  11  Mass.  279;  Com.  v.  Northampton,  2  Mass.  IIG  ;  Com. 
V.  Springfield,  7  Mass.  9  ;  Com.  v.  Cooley,  10  Pick.  37.  The  phrase  "against 
the  peace  of  the  Commonwealth"  is  a  proper  conclusion  for  an  offence  at  com- 
mon law.  Com.  V.  Buckingham,  2  Wheel.  C.  C.  182.  The  statutory  termi- 
nation, when  unnecessary,  may  be  treated  as  surplusage.  Com.  v.  Hoxey,  1 G 
Mass.  385. 

(o)  The  statutory  conclusion  can  be  rejected  as  surplusage,  if  necessary,  and 
judgment  given  at  common  law.  Knowles  v.  State,  3  Day,  103  ;  Swift's  Digest, 
684,  685  ;  Southworth  v.  State,  9  Conn.  560. 

43 


(35)  COMMENCEMENTS    AND    CONCLUSIONS 

(33)  Information  by  attorney  for  the  State. 

State  of  Connecticut.     County  of  ISTew  Haven,  ss. 

County  court,  jSTovember  terra,  one  thousand  eight  hundred 
and  forty-live. 

Dennis  Kimberly,  attorney  to  the  State  of  Connecticut,  for  the 
County  of  New  Haven,  now  here  in  court,  information  makes 
that,  etc.  {stating  the  offence). 

Against  the  peace  and  contrary  to  the  statute  in  such  case 
made  and  provided.  Whereupon  the  attorney  prays  the  advice 
of  this  honorable  court  in  the  premises. 

(34)  Information  by  grand  juror. 

State  of  Connecticut.     County  of  ITew  Haven,  ss. 

To  justice  of  the  peace  for  said  county,  residing  in  said 

town  {or  as  in  lastform\  comes  a  grand  juror  for  said  town, 
and  on  his  oath  of  office  information  makes,  that  at  said  New 
Haven  on   the  day  of  184  ,  etc.  {stating   the   offence), 

against  the  peace  and  contrary  to  the  statute  in  such  case  made 
and  provided.  Wherefore  the  grand  juror  aforesaid  prays  pro- 
cess, and  that  the  said  may  be  arrested  and  held  to  answer 
the  complaint,  and  be  dealt  with  according  to  law.  Dated  at 
New  Haven  the  day  and  year  first  aforesaid. 

(35)  Rhode  Island.     Commencement. 

State  of  Rhode  Island  and  Providence  Plantations.  Provi- 
dence, ss. 

At  the  Supreme  Judicial  Court  of  the  State  of  Rhode  Island 
and  Providence  Plantations,  holden  at  Providence,  within  and 
for  the  County  of  Providence,  on  the  third  Monday  of  Septem- 
ber, in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
forty. 

The  grand  jurors  of  the  State  of  Rhode  Island  and  Providence 
Plantations,  and  in  and  for  the  body  of  the  County  of  Provi- 
dence, upon  their  oaths  present,  that,  etc, 

(36)  Conclusion  for  common  law  offhice. 

Against  the  peace  and  dignity'  of  the  State. 
44 


IN    THE   FEDERAL    AND    STATE    COURTS.  (43) 

(37)  Conclusio7ifor  statutory  offence. 

Against  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  State. 

(38)  New  York.     Commencement. 

City  and  County  of  j^ew  York,  ss. 

The  jurors  of  the  people  of  the  State  of  ITew  York,  in  and  for 
the  body  of  the  City  and  County  of  New  York,  upon  their  oath 
present,  that,  etc. 

(39)  Conclusion  for  common  law  offence. 

Against  the  peace  of  the  people  of  the  State  of  IsTew  York, 
and  their  dignity. (p) 

(40)  Conclusion  for  statutory  offence. 

Against  the  form  of  the  statute  in  such  case  made  and  pro- 
vided,(^)  and  against  the  peace  of  the  people  of  New  York  and 
their  dignity. 

(41)  New  Jersey.     Commencement. 

In  the  Court,  etc,(r)  County,  to  wit: 

The  grand  inquest  for  the  State  of  New  Jersey,  and  for  the 
body  of  the  County  of  upon  their  present,  that,  etc. 

(42)  Conclusion  for  common  law  offence. 

Against  the  peace  of  this  State,  the  government  and  dignity 
of  the  same. 

(43)  Conclusion  for  statutory  offence. 

Contrary  to  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  of  this  State,  the  government  and  dignity  of 
the  same. 

(p)  See  Rev.  Stat,  part  4,  c.  2,  s.  51. 

See  People  i'.  Enoch,  13  Wend.  159,  per  Walworth,  Chancellor;  People  v. 
M'Kinnon,  1  Wheeler's  C.  C.  170. 

(q)  Against  the  form  of  the  statute  is  sufficient,  thoiiffh  the  olFence  be  pro- 
hibited by  more  than  one  statute.  Kane  v.  People,  9  Wend.  203.  By  2  Rev. 
Stat.  p.  728,  error  in  stating  the  conclusion  is  not  fatal. 

(?•)  The  court  should  appear  in  the  margin,  so  that  the  indictment  may  carry 
jurisdiction,  though  if  it  appear  in  the  caption  when  the  case  goes  up  on  error, 
it  is  enough.     State  v.  Zule,  5  Ilalst.  348. 

45 


(49)  COMMENCEMENTS    AND    CONCLUSIONS 

(44)  Pennsylvania,     Commencement. 

In  the  Court  of  for  the  County  of 

Session,  184  . 

The  grand  inquest  of  the  Commonwealth  of  Pennsj^lvania, 
inquiring  for  the  upon  their  oaths  and  affirmations 

respectively  do  present,  etc. 

(45)  Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  Commonwealth  of  Penn- 
sylvania.(5) 

(46)  Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  act  of  assembly  in  such  case 
made  and  provided,(^)  and  against  the  peace  and  dignity  of  the 
Commonwealth  of  Pennsylvania. 

(47)  Delaware.     Commencement. 

October  Term,  1836.     Kent  County,  ss. 

The  grand  inquest  for  the  State  of  Delaware  and  the  body  of 
Kent  County,  on  their  oath  and  affirmation  respectively,  do 
present,  etc. 

(48)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State. 

(49)  Conclusion  for  statutory  offence. 
Against  the  form  of  the  act  of  the  general  assembly  in  such 

(s)  By  the  constitution,  all  prosecutions  have  to  be  carried  on  in  the  name 
and  by  the  authority  of  the  Commonwealth  of  Pennsylvania,  and  conclude 
"  against  the  peace  and  dignity  of  the  same."  Art.  v.  s.  11.  The  proper  con- 
clusion is,  "against  the  peace  and  dignity  of  the  Commonwealth  of  Pennsyl- 
vania."    Com.  V.  Rogers,  5  S.  &  K.  463;   Com.  v.  Jackson,  1  Grant,  262. 

(t)  See  Warner  v.  Com.,  1  Barr,  154;  Com.  v.  Searle,  3  Binn.  332;  Russel 
V.  Com.,  7  S.  &  R.  489;  White  v.  Com.,  6  Binn.  179;  Chapman  v.  Com., 
5  AVh.  427.  Where,  however,  to  a  common  law  offence  there  is  a  penalty 
attached,  but  the  offence  continues  unchanged,  the  conclusion  "  contra  for  mam," 
etc.,  need  not  be  inserted  ;  and  this  is  even  the  case  in  an  indictment  for  murder, 
though  the  common  law  offence  is  here  divided  into  two  partitions.  White  v. 
Com.,  6  Binn.  179. 

When  the  termination  "against  the  act,"  etc.,  is  regularly  inserted  in  a 
common  law  indictment,  the  courts  will  regard  it  as  surjilusage.  Pa.  v.  Bell, 
Add.  171 ;  Res.  v.  Newell,  3  Yeates,  407. 

46 


IN  THE  FEDERAL  AND  STATE  COURTS.  (55) 

case  made  aud  provided,(ii)  against  the  peace  and  dignity  of  the 
State.(v) 

(60)  Maryland.     Commencement. 

"Washington  County,  ss. 

The  jurors  of  the  State  of  Maryland  for  the  body  of  Wash- 
ington County,  on  their  oath  present,  etc. 

(51)  Conclusion  for  common  law  offence. 
Against  the  peace,  dignity,  and  government  of  tlie  State. 

(52)  Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  act  of  assembly  in  such  cases 
made  and  provided(i^)  and  against  the  peace,  dignity,  and  gov- 
ernment of  the  State. 

(53)   Virginia.     Commencement. 

Virginia,  Lewis  County,  to  wit: 

The  jurors  for  the  Commonwealth  of  Virginia  in  and  for  the 
body  of  the  County  of  Lewis,  upon  their  oath  present,  etc. 

(54)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  Commonwealth. (a:) 

(55)  Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  that  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  Commonwealth 
of  Virginia.(?/) 

(w)  "  Against  the  form  of  the  acts,"  etc.,  will  not  be  vicious  though  only  one 
act  prohibits  the  offence.     Townley  v.  State,  3  Harring.  3  77. 

The  statutory  conclusion  can  always  be  rejected  as  surplusage.  State  v. 
Craidly,  3  Harring.  108. 

(y)   See  State  v.  Whaley,  2  Harring.  538. 

(w)  State  V.  Negro  Jesse,  7  Gill  &  J.  290.  Where  the  punishment  is  pre- 
scribed by  one  act,  and  the  offence  proliibited  by  another,  it  is  said  the  conclusion 
should  be  "against  the  acts"  (States.  Cassal,  2  Harr.  &  Gill,  407);  though 
the  weight  of  authority  is  now  the  other  way.     Supra,  p.  30. 

[x]  To  omit  this  is  fatal.  Com.  v.  Carny,  4  Grat.  546  ;  Thompson  v.  Com., 
20  Grat.  724.     And  so  in  West  Virginia.     State  v.  Allen,  8  W.  Va.  680. 

(y)   See  for  this  form.  Com.  v.  Daniels,  2  Va.  Cases,  402. 

In  case  of  misdemeanor  it  is  said  that  though  the  name  of  the  county  be  left 
blank  in  the  margin,  the  deficiency  will  be  made  up  by  the  statement  of  the 
county  in  the  body  of  the  indictment.     Teft  v.  Com.,  8  Leigh,  721. 

47 


(60)  COMMENCEMENTS   AND    CONCLUSIONS 

(56)  North  Carolina.     Commencement. 

{z)  County,  to  wit:    Superior  Court  of  law,  term, 

184  .     The  jurors  for  the  State  upon  their  oath  present  that, 
etc.(a) 

(57)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State.(6) 

(58)  Conclusion  for  statutory  offence. 

Contrary  to  the  statute  in  such  case  made  and  provided, ((^)  and 
against  the  peace  and  dignity  of  the  State. 

(59)  South  Carolina.    Commencement. 
The  State  of  South  Carolina, 


District,  '' 

At  a  Court  of  General  Sessions,  begun  and  holden  in  and  for 
the  district  of  in  the  State  of  South  Carolina,  at  in 

the  district  and  State  aforesaid,  on  the  day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 

The  jurors  of  and  for  the  District  of  aforesaid,  in  the  State 
of  South  Carolina  aforesaid,  that  is  to  say,  etc.,  upon  their  oaths 
present,  etc. 

(60)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  same  State  aforesaid. (a?) 

(2)  The  omission  of  "Noi'th  Carolina"  is  no  cause  for  arresting  judfrment 
where  the  name  of  the  county  appears  in  the  margin  or  body  of  the  indictment. 
State  V.  Lane,  4  Iredell,  113. 

(a)  Where  the  term  is  stated  in  these  words:  "Fall  term,  1822,"  and  in  the 
body  of  the  indictment  the  offence  is  charged  "on  the  first  day  of  August  in  the 
present  year,"  the  time  is  sufficiently  set  forth  ;  and  it  is  said  there  is  no  neces- 
sity for  stating  any  time  in  the  caption  of  an  indictment  found  in  the  county  or 
sujierior  courts.     State  i\  Haddock,  2  Hawks,  461. 

(i)   State  V.  Evans,  5  Iredell,  603. 

(c)  State  V.  Jim,  3  Murph.  3.  See,  as  to  the  propriety  of  concluding  "  against 
the  statutes,"  where  the  act  is  in  violation  of  more  than  one  statute.  State  i'. 
Pool,  2  Dev.  202.  Supi-a.  note  to  form  2,  conclusion  of  indictments.  The  un- 
necessary insertion  of  the  qualification  ^^  contra  forinam,"  etc.,  does  not  vitiate  a 
common  law  indictment.     Ibid.  Haslip  v.  State,  4  Hay.  273. 

(d)  Though  the  commencement  in  the  margin  is  "  South  Carolina,"  and  not 
"  State  of  South  Carolina,"  a  conclusion  "against  the  peace  and  dignity  of  the 
said  State"  is  good.  State  v.  Anthony,  1  iM'Cord,  285.  The  same  ruling  was 
had  as  to  the  conclusion  "against  the  peace  and  dignity  of  this  State,"  and  as  to 

48 


IN  THE  FEDERAL  AND  STATE  COURTS.  (67) 

(61)  Conclusion  for  statutory  offence. 

Against  the  form  of  the  act  of  the  general  assembly  of  the  said 
State(e)  in  such  case  made  and  provided,  against  the  peace  and 
dignity  of  the  same  State  aforesaid. 

(62)  Georgia.     Comnencement. 

Georgia. — Gwinnett  County,  ss. 

The  grand  jurors  sworn,  chosen,  and  selected  for  the  County 
of  Gwinnett,  in  the  name  and  in  the  behalf  of  the  citizens  of 
Georgia,  on  their  oath  present,  etc.(/) 

(63)  Conclusion  for  common  law  offence. 

Contrary  to  the  good  order,  peace,  and  dignity  of  the  said 
State. 

(64)  Conclusion  for  statutory  offence. 

Contrary  to  the  laws  of  the  said  State,  the  good  order,  peace, 
and  dignity  thereof. 

(65)  Alabama.     Commencement. 

The  State  of  Alabama,  County.    In  Circuit  Court,  at 

term,  184  . 

The  grand  jurors  for  the  said  State  of  Alabama,  empanelled, 
sworn,  and  charged  to  inquire  for  the  body  of  County,  upon 

their  oath  present,  etc. 

{QQ)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State  of  Alabama.(^) 

(67)  Conclusion  for  statutory  offence. 
Contrary  to  the  form  of  the  statute  in  such  case  made  and 

that  "against  the  peace  and  dignity  of  the  same;"  the  Constitution  prescribing 
the  termination,  "  against  the  peace  and  dignity  of  the  same."  State  c.  Yancey, 
1  Tr.  Con.  Rep.  237;   State  v.  Washington,  I'Bay,  120. 

(e)  Unless  the  statute  is  merely  declaratory  of  the  common  law,  without 
adding  to  it  or  altering  it,  the  conclusion  should  be,  in  all  cases  where  a  statute 
comes  into  play,  "  contra  formani."     State  v.  Ripley,  2  Brevard,  382. 

(f)  Worcester  v.  State,  6  Peters,  520. 

((/)  If  the  indictment  concludes  against  the  peace,  etc.,  it  is  not  necessary  that 
each  preceding  count  should  so  conclude.     McGuire  v.  State,  37  Ala.  IGl. 

VOL.  I.— 4  49 


(72)  COMMENCEMENTS    AND    CONCLUSIONS 

provided,  and  against   the  peace  and  dignity  of  the  State  ot 
Alabama.(/i) 

(68)  Mississippi.     Commencement. 

The  State  of  Mississippi,(f)  County,  ss. 

In  the  Criminal  Court  (or  Circuit  Court)  for  County, 

at  the  term  thereof,  in  the  year  of  our  Lord  one  thou- 

sand eight  hundred  and  forty- 

The  grand  jurors  for  the  State  of  Mississippi  (taken  from  the 
body  of  the  good  and  lawful  men  of  County)  elected,  em- 

panelled, and  sworn  to  inquire  in  and  for  the  said  county  of 
at  the  term  of  aforesaid  (in  the  name  and  by  the  authority 

of  the  State  of  Mississippi).(J)  upon  their  oath  present,  etc. 

(69)  Conclusion  for  cominon  law  offence. 
Against  the  peace  and  dignity  of  the  State  of  Mississippi. (A-) 

(70)  Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  Common- 
wealth of  Mississippi. 

(71)  Louisiana.     Commencement. 

The  State  of  Louisiana,  First  Judicial  District,  ss.  Parish  of 
Orleans.     Criminal  Court  of  the  First  District. 

The  grand  jurors  for  the  State  of  Louisiana,  duly  empanelled 
and  sworn,  in  and  for  the  Parishes  of  Orleans,  Jefferson,  and 
Plaquemines,  upon  their  oath  present,  etc. 

(72)  Conclusion  generally. 
Contrary  to  the  form  of  the  statute  (of  the  State  of  Louis- 
es)  See  State  v.  Williams,  3  Stew.  454;   State  v.  Coleman,  5  Port.  32. 
(t)  It  is  not  essential  that  there  should  be  a  formal  statement  of  a  finding  by 
authority  of  the  State.     It  is  enough  if  it  appear  from  the  record  that  the  prose- 
cution is  in  the  State's  name.     Greeson  v.  State,  5  How.  ]\Iiss.  R.  33  ;   Woodsides 
V.  State,  2  lb.  33. 

{j)  The  passages  in  brackets,  though  usual,  can  be  omitted.  Woodsides  v. 
State,  2  How.  Miss.  R.  655.     See  Greeson  v.  State,  5  How.  Miss.  R.  32. 

(A)  An  indictment,  beginning  "  State  of  Mississippi,"  and  concluding  "  against 
the  peace  and  dignity  of  the  same,"  is  sufficiently  precise.  State  v.  Johnson,  1 
Walker,  392. 

60 


IN    THE   FEDERAL    AND   STATE   COURTS.  (76) 

iana),(/)  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  same.(m) 

(73)  Michigan.     Commencement. 

State  of  Michigan.      The  Circuit  Court  for   the  County  of 
"Wayne,  of  the  term  of  May,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  forty- 
Wayne  County,  ss. 

The  grand  jurors  of  the  people  of  the  State  of  Michigan,  in- 
quiring in  and  for  the  body  of  the  County  of  Wayne  aforesaid, 
upon  their  oath  present,  etc. 

(74)  Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  people  of  the  State  of 
Michio-an. 


tn'- 


(75)  Conclusion  for  statutory  offence. 

Against  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  people  of  the 
State  of  Michigan. 

(76)  Ohio.     Commencement. 

The  State  of  Ohio,  Franklin  County,  ss. 

The  Court  of  Common  Pleas,  Franklin  Countj'-,  Ohio,  of  the 
term  of  June,  in  the  year  of  our  Lord  one  thouieand  eight  hun- 
dred and  fifty-three. 

The  jurors  of  the  grand  jury  of  the  State  of  Ohio,  empanelled, 
sworn,  and  charged(7t)  to  inquire  of  offences  committed  within 

(/)  The  omission  of  this  is  not  fatal.     State  v.  Korn,  16  La.  Ann.  183. 

\in)  "Against  the  peace,"  etc.,  when  required  by  the  Constitution,  is  essen- 
tial.    State  V.  McCoy,  29  La.  Ann.  593. 

Information.     The  State  of  Louisiana,  First  Judicial  District,  ss. 

Criminal  Court  of  the  First  District. 

Christian  Koselius,  Attorney-^jcneral  of  the  State  of  Louisiana,  who,  in  the 
name  and  by  the  authority  of  the  said  State,  prosecutes  in  this  behalf,  in  proper 
person  comes  into  the  Criminal  Court  of  the  First  District,  at  the  City  of  2^ew 
Orleans,  on  the  da\'  of  ,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  forty-  ,  and  gives  the  said  court  here  to  understand  and  b(^ 

informed,  etc.,  contrary  to  the  form  of  the  statute  of 

the  State  of  Louisiana,  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  same. 

(n)  It  is  not  necessary  that  it  should  be  averred  in  the  indictment  that  the 
grand  jury  were  empanelled  and  sworn  to  inquire  within  and  for  the  body  of 

51 


(81)  COMMENCEMENTS    AND    CONCLUSIONS 

the  said  County  of  Franklin,  in  the  name  and  by  the  authority 
of  the  State  of  Ohio,  on  their  oaths  do  present  and  find.(o) 

(77)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State  of  Ohio.(29)     . 

(78)  Conclusion  f 07'  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  State  of 
Ohio.(y) 

(79)  Indiana.     Commence^nent. 

State  of  Indiana,  County  of 

In  the  court,  etc.  {setting  out  the  same),  of  terra,  184  . 

The  grand  jurors  empanelled  and  sworn,  etc.,  to  inquire  for 
the  State  of  Indiana  and  the  body  of  the  County  of  V.,(r)  upon 
their  oath  do  present,  etc. 

(80)  Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  State.(5) 

(81)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State. 

the  county.  "  The  hiw,"  it  was  said  by  the  Supreme  Court  in  this  connection, 
"  points  out  the  duty  of  the  grand  jury  ;  the  law  requires  them  to  inquire  within 
and  for  tlie  body  of  the  county,  where  they  are  empanelled,  and  for  no  other 
county ;  for  here  they  are  empanelled  and  sworn  ;  therefore  the  law  presumes  the 
purpose,  and  it  is  not  error,  any  more  than  it  would  be  to  omit  to  state  their 
number,  to  omit  an  averment  of  the  purpose  for  which  they  are  empanelled,  when 
thev  can  under  law  be  empanelled  for  no  other  purpose."  Ohio  v.  Hurley,  6 
Ohio  R.  309. 

(o)  Warren's  C.  L.  5. 

Q))  As  no  common  law  offences  are  now  recognized  in  Ohio,  this  conclusion, 
without  the  statutory  averment,  is  obsolete  and  defective. 

(7)  See  Const,  art.  .3,  s.  12,  where  the  same  termination  is  prescribed  as  is 
given  in  the  Constitution  of  Pennsylvania  ;  as  to  construction  of  which,  see  ante, 
(44). 

(r)   See  State  r.  Kiger,  4  Ind.  G21  ;  Curtz  v.  State,  lb.  385. 

{s)  Where  the  words  "and  dignity"  were  omitted,  the  court  amended  the 
indictment,  on  the  motion  of  the  prosecuting  officer,  by  inserting  them.  Cain  v. 
State,  4  Blackf.  .512. 

52 


IN   THE    FEDERAL    AND    STATE    COURTS,  (87) 

(82)  Illinois.     Commencement. 

State  of  Illinois,  County,  ss. 

Of  the  term  of  the  Circuit  Court  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  forty- 

The  grand  jurors  chosen,  selected,  and  sworn  in  and  for  the 
county  of  in  the  name  and  by  the  authority  of  the  people 

of  the  State  of  Illinois,  upon  their  oaths  present,  Qic.{t) 

(83)  Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  people  of  the  State  of 
Illinois.(M) 

(84)  Conclusion  for  statutory  qfence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  said  people 
of  the  State  of  Illinois. 

(85)  Kentucky.     Commencement. 

Commonwealth  of  Kentucky,  County,  ss. 

The  grand  inquest  of  the  Commonwealth  of  Kentucky,  inquir- 
ing for  the  county  of  ,  on  their  oath  present,  etc. 

(86)  Conclusion  for  common  law  offence. 

Against  the  peace  and  dignity  of  the  Commonwealth  of  Ken- 
tucky. 

(87)  Conclusion  for  statutory  offence. 

Against  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  Commonwealth  of  Ken- 
tucky.(v) 

(J)  See  Bassett's  Crim.  PI.  41. 

(w)   Zarresseller  I'.  People,  17  111.  101. 

(r)  The  conclusion  ^^  contra  foi'tnaiii,"  etc.,  if  improperly  introduced,  can 
always  be  treated  as  surplusage.  Com.  v.  Gregory,  2  Uana,  103.  Notwith- 
standing the  constitutional  provisions  that  all  prosecutions  should  be  carried  on 
in  the  name  and  by  the  authority  of  the  Commonwealth  of  Kentucky,  it  is  not 
requisite  that  indictments  should  so  conclude.  Allen  «^  Com.,  2  Bibb,  210: 
"When  we  threw  off  the  regal  government  and  adopted  the  republican  form,  it 
became  necessary  to  provide  that  prosecutions  should  be  carried  on  in  the  name 
and  by  the  authority  of  the  Commonwealth  ;  but  as  under  the  regal,  so  under 
our  present  form  of  government,  it  is  equally  unnecessary  that  an  indictment 
should  expressly  aver  by  what  authority  it  is  found  and  carried  on.     This  in- 

53 


(93)  COMMENCEMENTS    AND    CONCLUSIONS 

(88)   Tennessee.     Commencement. 

State  of  Tennessee.  Hardin  County,  Circuit  Court,(ty)  N'o- 
vember  term,  1829. 

The  grand  jurors  of  the  State  of  Tennessee,  elected,  empan- 
nelled,  sworn,  and  charged  to  inquire  for  the  body  of  the  County 
of  Hardin,  aforesaid,  upon  their  oath  present,  etc. 

(89)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State. (x) 

(90)  Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  State. 

(91)  Missouri.     Commencement. 

State  of  Missouri,  A.  County,  ss. 
The  Circuit  Court,  term,  184     . 

The  grand  jurors  for  the  State  of  Missouri  for  A.  County, 
sworn  to  inquire,(_y)  upon  their  oath  present,  etc. 

(92)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State.(2') 

(93)  Conclusion  for  statutory  offence. 
Contrary  to  the  form  of  the  statute  in  such  case  made  and 

dictment  was,  as  all  other  indictments  must  be,  carried  on  by  the  authority  of 
the  Commonwealth  of  Kentucky,  and  not  by  the  authority  of  any  other  power ; 
and  tliat  is  alone  what  the  Constitution  requires." 

The  omission  "of  Kentucky,"  at  all  events,  is  not  fatal.  Com.  v.  Young,  7 
B.  Monroe,  1. 

(iv)  It  should  appear  in  what  court  the  indictment  is  found,  so  that  it  shall 
carry  with  it  jurisdiction.     Dean  v.  State,  Mart.  &  Yerg.  127. 

The  grand  jury  iiuist  appear,  from  the  whole  record,  to  come  from  the  county 
over  Avhich  the  court  has  jurisdiction.  Tipton  v.  State,  Peck's  K.  8  ;  Cornell  v. 
State,  Mart.  &  Yerg.  147. 

(x)  State  V.  Barnes,  5  Yerg.  187.  The  object  of  the  conclusion  '■^contra 
fonnarn,"  etc.,  is  to  indicate  to  the  court  and  the  defendant  that  the  offence  and 
the  penalty  are  statutory.     Crain  v.  State,  2  Yerg.  390. 

(y)  See  States.  England,  19  Mo.  386.  "Sworn  to  inquire"  is  surplusage, 
though  it  is  the  practice  to  introdvxce  it. 

[z)  An  omission  of  this  Is  fatal.  State  v.  Lopez,  19  Mo.  254  ;  State  v.  lleaky, 
1  Mo.  Ap.  3. 

54 


IN    THE    FEDERAL    AND    STATE    COURTS.  (96) 

provided,  and  against  the  peace  and  dignity  of  the  State  of  Mis- 
souri.(a) 

(94)  A7'ka7isas.     Commencement. 

State  of  Arkansas,  County,  ss. 

Court,  etc.,  of  term,  184  . 

The  grand  jurors  for  the  State  of  Arkansas,  sworn  and  charged 
to  inquire  for  the  county  of  upon  their  oath  present,  etc. 

(95)  Conclusion  for  common  law  offence. 
Against  the  peace  and  dignity  of  the  State  of  Arkansas.(6) 

(96)  Conclusion  for  statutory  offence. 

Contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  State  of  Ar- 
kansas. 


(a)  The  indictment  is  usually  signed  "  C.  D.,  circuit  attorney,"  though  this, 
it  seems,  is  unnecessary.     Thomas  v.  State,  6  Miss.  457. 

(i)  The  constitutional  provision,  that  the  conclusion  shall  be  "against  the 
peace  and  dignity  of  the  State  of  Arkansas,"  will  not  be  deviated  from  by  the 
insertion  of  the  words  "the  people  of"  before  the  State.  Anderson  v.  State,  5 
Pike,  445;   Buzzard  v.  State,  20  Ark.  106.      See  State  v.  Cadle,  19  Ark.  G13. 

55 


BOOK  II. 

CHAPTER  I. 

ACCESSARIES,  (a) 

(97)  Against  accessary  before  the  fact,  together  with  the  principal. 

(98)  Against  an  accessary  before  the  fact,  the  principal  being  convicted. 

(99)  Against  accessary  after  the  fact  Avith  the  ijrincipal. 

(100)  Against  an  accessary  after  the  fact,  the  principal  being  convicted. 

(101)  Against  accessary  before  the  fact  generally  in  Massachusetts. 

(102)  Indictment  against  an  accessary  before  the  fact,  in  murder,  at  com- 

mon law. 

(103)  Against  accessaries  before  the  fact  in  Massachusetts. 

(104)  Against  an  accessary  for  harboring  a  principal  felon  in  murder. 

(105)  Against  an  accessary  to  a  burglary  after  the  fact. 

(106)  Against  principal  and  accessaries  before  the  fact,  in  burglary. 

(107)  Against  accessary  before  the  fact  to  suicide.     First  count  against  sui- 

cide as  principal  in  the  first  degree,  and  against  party  aiding  him 
as  principal  in  the  second  degree. 

(108)  Second  count  against  defendant  for  murdering  suicide. 

(109)  Against  a  defendant  in  murder  who  is  an  accessary  before  the  fact  in 

one  county  to  a  murder  committed  in  another. 

(110)  [For  other  forms  of  indictments  against  accessaries  in  homicide,  see 

post,  132,  156,  etc.] 

(111)  Larceny.     Against  principal  and  accessary  before  the  fact. 

(112)  Against  accessary  for  receiving  stolen  goods. 

(113)  Against  accessary  for  receiving  the  principal  felon. 

(97)  Against  accessary  before  the  fact,  together  with  the  principal, 

{After  charging  the  principal  with  the  offence,  and  immediately 
before  the  conclusion  of  the  indictment,  charge  the  accessary  thus) : 

[a)  [Who  are  accessaries. — 7Vwe  nf  trial  and  venue.)  See  this  subject  con- 
sidered in  Wh.  Cr.  L.  8th  ed.  §§  205  et  seq.  Where  the  parties  are  principals 
in  the  second  degree  as  Avell  as  in  fact  they  are  in  the  first,  they  may  be  charged 
either  way  in  one  count;  R.  v.  Crisliam,  C.  &M.  187  (INIaule,  J.,  and  Rolfe,  B.) ; 
or  both  ways  in  different  counts.  See  Wh.  Cr.  L.  8th  ed.  §  221  ;  State  v. 
McGregor,  41  N.  H.  407;   Com.  v.  Chapman,  11  Cush.  422;   Com.  v.  Fortune, 

56 


ACCESSARIES.  (97) 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  J.  W.,  late  of  the  parish  aforesaid,  in  the  county 
aforesaid,  laborer,  before  the  said  {felony  and  larceny^  or  felony  and 
burglary)  was  committed  in  form  aforesaid,  to  wit,  on  the  first  day 
of  August,  in  the  3'ear  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  did  feloniously  and  maliciously  incite,  move, 
procure,  aid,  counsel,  hire,  and  command  the  said  J.  S.  the  said 
{felony  and  larceny^  or  felony  and  burglary)  in  manner  and  form 
aforesaid  to  do  and  commit.(6)     {Conclude  as  in  book  1,  chap.  3.) 

105  Mass.  592;  State  v.  Hill,  72  N.  C.  345;  State  v.  Green,  4  Strobli.  128; 
State  V.  Davis,  29  Mo.  391  ;  People  v.  Ah  Fat,  48  Cal.  61.  Thus  an  indictment 
in  its  first  count  charged  that  Folkes  ravished  E.,  and  that  Ludds,  at  the  time  of 
committing  the  said  felony  and  rape  in  form  aforesaid,  to  wit,  on,  etc.,  with  F. 
and  A.  at,  etc.,  feloniously  was  present,  aiding,  abetting,  and  assisting  Folkes  the 
felony  and  rape  to  do  and  commit,  against  the  peace,  etc.  ;  and  in  other  counts 
Ludds  was  charged  as  principal  and  Folkes  as  aider;  in  others  an  "  evil  disposed 
person  unknown"  was  laid  as  principal,  and  Folkes  and  Ludds  as  aiders;  and 
Ludds  was  acquitted,  Folkes  convicted  generally,  it  appearing  that  the  latter, 
with  three  other  men,  had  committed,  at  the  same  place  and  time,  one  after  the 
other  successively,  rapes  on  E.,  the  others  aiding,  etc.,  in  turn.  It  was  said 
that  distinct  offences,  liable  to  distinct  punishments,  were  charged,  and  that  there 
was  therefore  a  misjoinder;  as  9  G.  IV.,  c.  31,  contained  no  specific  provision 
against  aiders  and  abettors  in  rape.  It  was  held  by  the  judges,  on  case  reserved, 
that  the  conviction  was  good  on  the  first  count  charging  him  as  principal ;  and 
that  on  such  an  indictment  several  rapes  on  the  same  woman  b}-  prisoner  and 
other  men,  each  assisting  the  other  in  turn,  might  be  proved  witliout  putting  the 
Crown  to  elect  on  which  count  to  proceed.  Folkes'  case,  1  Mood.  C.  C.  354. 
But  in  rape,  an  assistant,  though  present,  can  only  be  charged  as  principal  in  the 
second  degree.     Wh.  Cr.  L.  8th  ed.  §§  553  a,  569. 

An  indictment  against  G.  and  AV.  charged  in  the  first  count  W.  as  principal 
and  G.  as  an  aider,  in  the  second  it  charged  G.  as  principal  and  W.  as  aider 
(viz.,  as  principal  in  second  degree).  Coleridge,  J.,  refused  a  motion  to  (juash 
the  indictment  for  misjoinder.  R.  v.  Gray,  7  C.  &  P.  164.  See  R.  v.  Parry, 
7  C.  &  P  836;  Dickinson's  Q.  S.  6th  ed.  293.  Where,  however,  by  statute, 
offences  of  the  one  class  have  a  different  jmnishment  from  that  assignc<l  to 
offences  of  the  other  class,  then  the  indictments  must  be  special.  1  East  P.  C. 
348;  R.  V.  Home,  1  Leach,  473.      For  other  cases  see  Wh.   Cr.    L.    8th  ed. 

§221- 

The  acquittal  of  a  party  charged  as  principal  in  the  first  degree  is  no  bar  to  the 
conviction  of  a  party  charged  as  principal  in  the  second  degree  in  the  same  indict- 
ment. And  the  princijial  in  the  second  degree  may  be  tried  first.  Wh.  Cr.  L. 
8th  ed.  §  322. 

(b)  Mr.  Archbold,  in  his  note  to  this  form,  says:  "The  act  of  accessary  be- 
fore the  fact  is  described  in  the  several  statutes  creating  new  felonies,  or  punish- 
ing with  death  the  principal  and  accessaries  in  felonies  at  common  law,  in  diifcrent 
terms.  In  prudence,  perhaps,  it  will  be  better  to  pursue  the  words  of  the 
statute  upon  which  the  indictment  is  framed,  in  describing  the  offence  of  the 
accessary  ;  but  if  the  statute  do  not  mention  accessaries,  or  in  the  case  of  a  felony 
at  common  law,  the  words  in  the  above  form  'incite,  move,  procure,'  etc.,  will 
be  sufficiently  indicative  of  the  offence.  And  even  wlierc  the  statute  does  ex- 
pressly describe  the  offence  of  accessary  in  terms,  it  is  not  absolutely  necessary  to 
describe  it  in  the  same  terms  in  the  indictment ;  a  description  in  eijuivalent  terms 
will  be  sufficient :  thus,  where  the  words  in  the  statute  were  '  command,  hire,  or 

57 


(98)  ACCESSARIES. 

(98)  Indictment  against  an  accessary  before  the  fad.,  the  jprinci'pal 

being  convicted. 

Middlesex,  to  wit:  The  jurors  for  our  lady  the  queen  upon 
their  oath  present,  that  heretofore,  to  wit,  at  the  general  sessions 
of  the  delivery  of  the  gaol  of,  etc.  etc.  {so  continuing  the  caption 
of  the  indictment  against  the  principal).,  it  was  presented  upon  the 
oaths  of,  etc.,  that  one  J.  S.,late  of,  etc.  {continuing  the  indictment 
to  the  end.,  reciting  it.,  however.,  in  the  fast.,  and  not  in  the  present 
tense)^  upon  which  said  indictment  the  said  J.  S.,  at  the  session 
of  the  gaol  delivery  aforesaid,  was  duly  convicted  of  the  {felony 
and  larceny)  aforesaid,  as  by  the  record  thereof  more  fully  and 
at  large  appears. (e)*  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present  that  J.  W.,late  of  the  parish  afore- 
said, in  the  county  aforesaid,  laborer,  before  the  said  {felony  and 
larceny)  was  committed  in  form  aforesaid,  to  wit,  on  the  first 
day  of  May  in  the  year  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  did  feloniously  and  maliciously  incite,  move, 
procure,  aid,  counsel,  hire,  and  command  the  said  J.  S.  the  said 
{felony  and  larceny)  in  manner  and  form  aforesaid  to  do  and  com- 
mit ;  against  the  peace,  etc.  {as  in  ordinary  cases).{d) 

counsel,'  and  in  the  indictment,  '  excite,  move,  and  procure,'  the  indictment  was 
hohU^n  good ;  because  the  words  were  of  the  same  legal  import.  11.  v.  Grevil, 
1  And.  195.  A  man  may  be  indicted  as  accessary  to  one  of  several  principals  or 
to  all,  and  if  he  be  indicted  as  accessary  to  all,  he  may  be  convicted  on  such  in- 
dictment as  accessary  to  one  or  some  of  them.  Lord  Sanchar's  case,  9  Co.  119; 
Fost.  361  ;  1  Hale,  624.  An  indictment  charging  that  a  certain  evil  disposed 
person  feloniously  stole  certain  goods,  and  that  A.  B.  feloniously  incited  the  said 
evil  disposed  person  to  commit  the  said  felony,  is  bad  against  A.  B.  R.  v. 
Caspar,  2  Mood.  C.  C.  101;  9  C.  &  P.  289."  Accessaries,  Arch.  C.  P.  811; 
cf.  \Vh.  C.  L.  8th  ed.  §§  20.5  et  seq.  225. 

(c)  In  setting  out  the  indictment  against  the  principal,  it  is  not  sufficient  to 
allege  that  "  at  the  sessions  of  gaol  delivery,  etc.,  it  was  jiresented,"  etc.,  with- 
out saying  by  whom,  and  on  oath,  etc.  R.  v.  Butterficld,  2  M.  &  Rob.  522.  As 
to  the  venue,  see  Arch.  C.  P.  815.  As  to  recent  statutes  making  the  accessary- 
ship  before  the  fact  an  independent  offence,  see  Wh.  Cr.  L.  8th  ed.  §  2.37. 

Though  at  (;ommon  law  the  accessary  cannot  be  convicted  until  the  principal 
has  been  convicted,  it  is  not  necessary  to  aver  the  principal's  conviction  in  the 
indictment.  State  v.  Sims,  2  Bail.  S.  C.  29  ;  State  v.  Evans,  lb.  66  ;  Holmes 
V.  Com.,  25  Penn.  St.  221  ;  Wh.  C.  L.  8th  ed.  §§  241,  244.  For  joint  indict- 
ment, see  infra,  102-3. 

Under  recent  statutes,  accessaries  before  the  fact  may  be  charged  as  principals. 
Cathcart  v.  Com.,  37  Penn.  St.  108;  Campbell  v.  Com.,  84  Penn.  St.  187; 
Baxter  v.  People,  3  Gilm.  368  ;  Dempsey  v.  People,  47  111.  323  ;  Yoe  v.  People, 
49  111.  410;  State  v.  Zeibart,  40  Iowa,  i69;  Jorden  v.  State,  56  Ga.  92  ;  Wh. 
Cr.  PI.  &  Pr.  238. 

{(1)  See  Wh.  Cr.  L.  8th  ed.  §§  226  et  seq. 

58 


ACCESSARIES.  OOl) 

(99)  Indictment  against  accessary  after  the  fact  ivith  the  principal. 

{After  stating  the  offence  of  the  principal,  and  immediately  be- 
fore the  conclusion  of  the  indictment,  charge  the  accessary  after  the 
fact  thus):  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  J.  W.,  late  of  the  parish  aforesaid,  in 
the  county  aforesaid,  laborer,  well  knowing  (e)  the  said  J.  S.  to 
have  done  and  committed  the  said  {felony  and  larceny)  in  form 
aforesaid,  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at 
the  parish  aforesaid,  in  the  county  aforesaid,  him  the  said  J.  S. 
did  feloniously  receive,  harbor,  and  maintain. (/)  {Conclude  as 
ante,  book  1,  chap.  3.) 

(100)  Indictment  against  an  accessary  after  the  fact,  the  principal 

being  convicted. 

{Proceed  as  in  the  precedent,  supra,  98,  to  the  asterisk  ;  and  then 
thus):  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  J.  W.,  late  of  the  parish  aforesaid,  in  the 
county  aforesaid,  laborer,  well  knowing  the  said  J.  S.  to  have 
done  and  committed  the  {felony  and  larceny)  aforesaid,  after  the 
same  was  committed  as  aforesaid,  to  wit,  on  the  day  and  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  him 
the  said  J.  S.  did  feloniously  receive,  harbor,  and  maintain, 
against  the  peace,  etc.  {as  in  ordinary  cases).{g) 

(101)  Against  accessary  before  the  fact  generally  in  Massachusetts, 

{Charge  the  offence  against  the  principal  in  the  usual  form,  and 
2)roceed):  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  A.  B.,  of  in  the  county  of  yeoman, 
before  the  said  felony  and  murder  {or  burglary,  etc.)  was  com- 
mitted, in  manner  and  form  aforesaid,  to  w^it,  on  at  was 
accessary  thereto  before  the  fact,  and  feloniously  and  maliciously 
{in  murder  say,  "  and  of  his  malice  aforethought,"  instead  of  mali- 
'ciously),  did  counsel,  hire,  and  procure  the  said  0.  D.  {the  princi- 
pal) the  felony  and  murder  aforesaid,  in  manner  and  form  afore- 
said, to  do  and  commit ;  against  the  peace  of  said  Commonwealth, 

(e)  This  is  essential.     AVh.  C.  L.  8th  ed.  §  242. 
(/)  Arch.  C.  P.  817.     See  Wh.  C.  L.  8th  ed.  §  241. 

(r/)  Arch.  C.  P.  820.  An  accessary  cannot  at  common  hiw  be  convicted  on 
an  indictment  charging  him  as  principal.     Wh.  C.  L.  8th  ed.  §  245. 

59 


(103)  ACCESSARIES. 

and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. (A) 

(102)  Indictment  against  an  accessary  before  the  fact^  in  murder^  at 

common  law. 

{Frame  the  indictment  against  the  j^rincipal  in  the  usual  form., 
alleging  the  nature  of  the  murder.,  and  then  proceed  as  follows) :  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  A.  B.,  of  in  the  county  of  laborer,  before  the 
said  felony  and  murder  was  committed,  in  form  aforesaid,  to 
wit,  on  the  day  of  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  with  force  and  arms,  at  in  the 
county  aforesaid,  was  accessary  thereto  before  the  fact,  and  did 
feloniously  and  maliciously  incite,  move,  procure,  aid,  counsel, 
hire,  and  command  the  said  C.  D.  to  do  and  commit  the  felony 
and  murder  aforesaid,  in  manner  and  form  aforesaid.(^')  {Con- 
clude as  in  precedents  for  murder.^  infra.) 

(103)  Accessaries  before  the  fact  in  Massachusetts. 

{After  (dleging  the  muirler  agai^ist  the  principal^  in  the  usual  form 
upon  the  first  section  of  the  statute  of  Massachusetts.,  1804,  c.  123, 
§  1,  the  indictment  proceeds) :  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  J.  J.  Ivnapp,  of,  etc.,  and 
George  Crovvninshield,  of,  etc.,  before  the  said  felony  and  mur- 

{h)  The  Rev.  Stat.  c.  133,  §§  1  and  2,  provide:  "  Every  person,  who  shall  be 
aiding  in  the  commission  of  any  offence  which  shall  be  a  felony,  either  at  com- 
mon law,  or  by  any  statute  now  made,  or  which  shall  hereafter  be  made,  or  who 
shall  be  accessary  thereto  before  the  fact,  by  counsellinfr,  hiring,  or  otherwise 
procuring  such  felony  to  be  committed,  shall  be  punished  in  the  same  manner, 
which  is,  or  which  shall  be  prescribed  for  the  punishment  of  the  principal  felony. 

"Every  person,  who  shall  counsel,  hire,  or  otherwise  procure  any  offence  to 
be  committed  which  shall  be  a  felony,  either  at  common  law,  or  by  any  statute 
now  made,  or  which  shall  hereafter  be  made,  may  be  indicted  and  convicted  as 
an  accessary  before  the  fact,  either  with  the  principal  felon,  or  after  the  convic- 
tion of  the  principal  felon  ;  or  he  may  be  indicteil  and  convicted  of  a  substantive 
felony,  whether  the  principal  felon  shall,  or  shall  not  have  been  convicted,  or 
shall  or  shall  not  be  amenable  to  justice  ;  and  in  the  last  mentioned  case  may  be 
^nished  in  the  same  manner  as  being  convicted  of  being  an  accessary  before 
the  fact."     The  statute  is  substantially  re-enacted  in  the  General  Statutes. 

The  form  in  the  text  is  based  on  the  above  statute,  and  is  in  conformity  with 
those  given  by  Mr.  Davis  under  it.  It  is  the  same  with  that  given  by  Train  & 
Heard,  p.  17. 

(z)  Cr.  C.  P.  124;   2  Chit.  C.  L.  5;   lb.  124. 

60 


ACCESSARIES.  (T-0^) 

der  was  committed,  in  manner  and  form  aforesaid,  to  wit,  on 
at  were  accessary  thereto  before  the  fact,  and  feloniously^ 

wilfully^  and  of  their  malice  aforethought^  did  counsel,  hire,  and 
procure  the  said  J.  J.  Knapp  {the  j)'>^incipal)  the  felony  and  mur- 
der aforesaid,  in  manner  and  form  aforesaid,  to  do  and  commit ; 
against  the  peace  of  said  commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided. (J) 

(104)    Against  an  accessary  for  harboring  a  principal  felon  in 

murder. 

{Frame  the  indictment^  against  the  principal  felon  ^  according  to  the 
facts  in  the  case,  and  in  the  usual  form  ;  then  go  on) :  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  A. 
B.,  late  of  in  the  county  of  laborer,  well  knowing  the 

said  C.  D.  to  have  done,  committed,  and  perpetrated  the  felony 
and  murder  in  manner  and  form  aforesaid,  afterwards,  to  wit, 
on  the  day  of  in  the  year  of  our  Lord  ,  with  force 

and  arms,  at  aforesaid,  in  the  county  aforesaid,  was  acces- 

sary thereto,  and  him  the  said  C.  D.  did  then  and  there  felo- 
niously receive,  harbor,  comfort,  conceal,  and  maintain,  etG.{k) 
{Conclude  as  above.) 

(105)  Against  an  accessary  to  a  burglary,  after  the  fact. 

{Draw  the  indictment  against  the  principal  according  to  the  pre- 
cedents in  burglary  {see  "  Burglary, ^^  post),  and  then  proceed) :  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  A.  B.,  of  in  the  county  of  laborer,  afterwards, 
to  wit,  on  at  well  knowing  the  said  C.  D,  to  have  done 

and  committed  the  felony  and  burglary  aforesaid,  in  manner  and 
form  aforesaid,  him  the  said  C.  D.  did  then  and  there  knowingly 
harbor,  conceal,  maintain,  and  assist. (^)  {Conclude  as  in  book  1, 
chap.  3.) 

(j)  This  was  the  indictment,  as  we  arc  informed  by  Mr.  Davis,  used  against 
the  accessaries  before  the  fact,  in  Com.  v.  Knapp,  9  Pick.  496,  as  jjrincipal,  "  in 
the  horrid  and  most  diabolical  murder  of  JoscjjIi  White  ;  upon  wliich  J.J.  Knapj0 
was  tried,  convicted,  and  executed.  Tlie  words  used  in  tlie  English  precedents 
arc  'feloniously  and  maliciously  counsel  him,'  etc.,  not  using  the  allegation  in 
the  following  precedent,  '  feloniously,  wiliiilly,  and  of  their  malice  aforethought.' 
This  indictment  was  drawn  by  the  attorney-general  of  Massachusetts."  Davis's 
Precedents,  41. 

(^-)  2  Stark.  C.  P.  456.  (0  Cro.  C.  P.  125. 

61 
% 


(107)  ACCESSARIES. 

(106)  Against  principal  and  accessaries  before  ike  fact,  in  burglary. 

{Draw  the  indictment  against  the  principal  according  to  the  pre- 
cedents in  burglary  {see  "  Burglary, ^^  post),  and  then  proceed) :  And 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  A.  B.,  of  in  the  County  of  laborer,  before  the  com- 

mitting of  the  fehony  and  burglary  aforesaid,  in  manner  afore- 
said, to  wit,  on  the  day  of  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  at  aforesaid,  in  the  county 
aforesaid,  was  accessary  thereto  before  the  fact,  and  did  felo- 
niously and  maliciously  incite,  move,  counsel,  hire,  and  procure, 
aid,  abet,  and  command  the  said  0.  D.  to  do  and  commit  the 
said  felony  and  burglary,  in  manner  and  form  aforesaid. (m) 
{Conclude  as  in  book  1,  chap.  3.) 

(107)  Accessary  before  the  fact  to  suicide.  First  count  against  sui- 
cide as  piincipal  in  the  first  degree,  and  against  party  aiding 
him  as  accessary  before  thefact.{n) 

The  jurors,  etc.,  upon  their  oaths  present,  that  C.  D.,  of 
laborer,  on  the  day  of  now^  last  past,  at  aforesaid, 

in  the  county  of  aforesaid,  in  and  upon  himself  did  make  an 

assault ;  and  that  he  the  said  C.  D.,  with  a  rope,  about  the  neck 
of  himself,  the  said  C.  D.,  then  and  there  feloniously,  wilfully,  and 
of  his  malice  aforethouglit  did  put,  fasten,  and  bind;  and  that 
he  the  said  C.  D.,  with  the  said  rope,  about  the  neck  of  him  the 
said  C.  D.,  then  as  aforesaid  put,  fastened,  and  bound,  himself  the 
said  C.  D.  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought  did  choke  and  strangle ;  of  which  said  choking 
and  strangling  the  said  C.  D.  then  and  there  instantly  died. 

And  so  the  inquest  aforesaid,  on  their  oath  aforesaid,  do  say, 
that  the  said  C.  D.,  in  manner  and  form  aforesaid,  himself,  the 
said  C.  D.,  feloniously,  wilfully,  and  of  his  malice  aforethought 
did  kill  and  murder,  against  the  peace  of  said  commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
•provided.     And  that  one  E.  F.,  late  of  said  laborer,  before 

the  said  self-murder,  by  the  aforesaid  C.  D.  in  manner  and  form 

(to)  3  Ch.  C.  L.  1101  ;   Cro.  C.  P.  124. 

(n)   On  tliis  topic,  sec  Wh.  C.  L.  8th  cd.  §  210.     Persons  abetting  suicide  are 
principals  in  murder.     Ibid, 

62 


ACCESSARIES.  (108) 

aforesaid  done  and  committed,  that  is  to  say,  on  the  day  and 
year  aforesaid,  him  the  aforesaid  C.  D.,  at  aforesaid,  in  the 

County  of  aforesaid,  to  do  and  commit  the  felony  and  mur- 

der of  himself  aforesaid,  in  manner  and  form  aforesaid,  mali- 
ciously, feloniously,  voluntarily,  and  of  his  malice  aforethought 
did  stir  up,  move,  ahet,  counsel,  and  procure,  against  the  peace 
of  the  said  commonwealth,  and  contrary  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided. 

(108)  Second  count  against  defendant  for  murdering  suicide. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  said  E.  F.,  on  the  day  and  year  aforesaid,  at 
aforesaid,  in  the  county  aforesaid,  in  and  upon  the  said  C. 
D.  did  make  an  assault;  and  that  he,  the  said  E.  F.,a  rope  about 
the  neck  of  the  said  C.  D.  then  and  there  feloniously  and  of  his 
malice  aforethought  did  put,  fasten,  and  bind  ;  and  that  he,  the 
said  E.  F.,  with  the  said  rope  about  the  neck  of  him  the  said  C. 
D.  then  as  aforesaid  put,  fastened,  and  bound,  him  the  said  C.  D. 
then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought did  choke  and  strangle;  of  which  choking  and  stran- 
gling he  the  said  C.  D.  then  and  there  instantly  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, that  the 
said  E.  F.,  in  manner  and  form  aforesaid,  him  the  said  C.  D. 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder;  against  the  peace  of  the  said  commonwealth,  and 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided.(o) 

[a)  This  is  in  general  construction  the  same  with  the  indictment  in  Com.  v. 
Bowen,  13  Mass.  357.  The  deceased,  a  convict  in  the  Northampton  prison, 
being  under  sentence  of  death,  the  defendant,  Avho  was  in  an  adjoining  ajjart- 
ment,  advised  him  the  day  before  the  intended  execution  to  make  away  with 
himself,  and  thereby  to  elude  the  penalties  of  the  law.  The  advice  was  taken, 
and,  the  experiment  being  successful,  the  defendant  was  indicted  in  the  first 
count,  as  a  principal  in  the  second  degree  in  the  homicide,  and  in  the  second 
count,  as  its  sole  cause.  The  jury  returned  a  verdict  of  not  guilty,  but  in  the 
charge  of  the  chief  justice  no  doubt  is  exjjressed  that  botli  the  counts  were 
proper.  The  law  was  declared  to  be,  that  if  the  persuasions  of  the  defendaa^ 
were  the  cause  of  the  death  of  the  deceased,  the  ibrmer  was  as  much  responsible 
for  it  as  if  he  had  himself  struck  the  blow.  See  R.  r.  Dyson,  R.  &  R.  523  ;  R. 
V.  Russell,  1  Moody  C.  C.  35G ;  R.  v.  Allison,  8  C.  &  F.  418;  R.  v.  Fretwell, 
9  Cox  C.  C.  152  ;  L.  &  C.  161  ;  Com.  v.  Dennis,  105  Mass.  1G2  ;  Com.  v.  Mink, 
123  Mass.  422;   Blackburn  v.  State,  23  Oh.  St.  1G5. 

63 


(109)  ACCESSARIES. 

(109)  Against  a  defendant  in  murder  who  is  an  accessary  before  the 
fact  in  one  county  to  a  murder  committed  in  another.{'p) 

That  Robert  Carliel,  late,  etc.,  and  James  Irweng,  late,  etc., 
as,  etc.,  at,  etc.,  not  having  the  fear  of  God  before  their  eyes 
but  being  moved  and  seduced  by  the  instigation  of  the  devil 
with  force  and  arms,  at  aforesaid,  in  the  county  aforesaid, 

in  and  upon  one, John  Turner,  in  the  peace  of  God  and  our  said 
lord  the  king,  then  and  there  being,  feloniously  and  of  their 
malice  aforethought,  did  make  an  assault,  and  that  the  afore- 
said Robert  Carliel,  with  a  certain  gun,  called  a  pistol,  of  the 
value  of  five  shillings,  then  and  there  charged  with  gunpowder 
and  one  leaden  bullet,  which  gun  the  said  Robert  Carliel,  in  his 
right  hand,  then  and  there  had  and  held  in  and  upon  the  afore- 
said John  Turner,  then  and  there  feloniously,  voluntarily,  and 
of  his  malice  aforethought,  did  shoot  off  and  discharge,  and  the 
aforesaid  Robert  Carliel,  with  the  leaden  bullet  aforesaid,  from 
the  gun  aforesaid,  then  and  there  sent  out,  the  aforesaid  John 
Turner,  in  and  upon  the  left  part  of  the  breast  of  him  the  said 
John  Turner,  then  and  there  feloniously  struck,  giving  to  the 
said  John  Turner  then  and  there,  with  a  leaden  bullet  as  afore- 
said, near  the  left  pap  of  him  the  said  John  Turner,  one  mortal 
wound  of  the  breadth  of  half  an  inch  and  depth  of  five  inches, 
of  which  mortal  wound  the  aforesaid  John  Turner,  at  London 
aforesaid,  in  the  parish  and  ward  aforesaid,  instantly  died ;  and 
that  James  Irweng  feloniously,  wilfully,  and  of  his  malice 
aforethought,  then  and  there  was  present,  aiding,  assisting, 
abetting,  comforting,  and  maintaining  the  aforesaid  Robert 
Carliel  to  do  and  commit  the  felony  and  murder  aforesaid,  in 
form  aforesaid  ;  and  so  the  aforesaid  Robert  Carliel  and  James 
Irweng,  him  the  aforesaid  John  Turner,  at  London  aforesaid, 

(p)  This,  we  are  informed  by  Mr.  Starkie,  was  the  indictment  used  against 
Lord  Sanchar,  upon  which  he  was  convicted  and  executed.  A  full  account  of 
the  proceedings  upon  that  occasion  appears  in  9  Co.  117.  It  is  observable,  that 
though  the  indictment  is  founded  upon  the  stat.  2  &  3  E.  VI.  c.  24,  it  does  not 
Conclude  against  the  form  of  the  statute,  nor  does  this  appear  to  be  necessary  ; 
for  though,  before  the  statute,  an  accessary  in  one  county  to  a  murder  in  another, 
could  not  have  been  indicted  in  either,  that  was  for  want  of  tlie  authority  in  the 
jurors  to  inquire,  and  the  statute  merely  remedies  the  defect  without  making  any 
alteration  either  in  the  nature  of  the  otFence  or  in  the  measure  of  punishment, 
which  remained  at  common  law.  It  was  deemed  necessary,  says  Mr.  Starkie, 
expressly  to  allege  the  perpetration  of  the  murder  in  the  true  county. 

^64 


ACCESSARIES.  (HI) 

in  the  parish  and  ward  aforesaid,  in  manner  and  form  afore- 
said, feloniously,  voluntarily,  and  of  their  aforethou2;ht  malice, 
killed  and  murdered  ;  against  the  peace  of  our  lord  the  now 
king,  his  crown  and  dignity  ;  and  that  one  Robert  Creighton, 
late  of  the  parish  of  St.  Margaret,  in  Westminster,  in  the 
County  of  Middlesex,  Esq.,  not  having  the  fear  of  God  before 
his  eyes,  but  being  seduced  by  the  instigation  of  the  devil,  be- 
fore the  felony  and  murder  aforesaid,  by  the  aforesaid  Robert 
Carliel  and  James  Irweng,  in  manner  and  form  aforesaid  done 
and  committed,  that  is  to  say,  on  the  tenth  day  of  May,  in  the 
tenth  year  of  the  reign  of  our  lord  James,  by  the  grace  of  God, 
etc.,  the  aforesaid  Robert  Carliel,  at  the  aforesaid  parish  of  St. 
Margaret,  in  Westminster,  in  the  county  of  Middlesex  afore- 
said,(5')  to  do  and  commit  the  felony  and  murder  aforesaid,  in 
manner  and  form  aforesaid,  maliciously,  feloniously,  voluntarily, 
and  of  his  aforethought  malice,  did  stir  up,  move,  abet,  counsel, 
and  procure,  against  the  peace  of  our  said  lord  the  king  that 
now  is,  his  crown  and  dignity. 

(110)  [For  other  forms  of  indictments  against  accessaries  in  lionii- 
cide,  see  infra^  book  3,  chap.  1.] 

(Ill)  Larceny.     Principal  and  accessary  before  the  fact. 

That  A.  B.,  of  in  the  county  of  laborer,  on  the 

day  of  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  at  ,  one  silver  cup,  of  the  value  of  ten  dollars,  of 

the  goods  and  chattels  of  one  C.  D.,  then  and  there  in  the  pos- 
session of  the  said  C.  D.  being  found,  feloniously  did  steal,  take, 
and  carry  away,  against,  etc. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  E.  F.,  late  of  in  the  county  of  lal)orer,  be- 
fore the  committing  of  the  felony  and  larceny  aforesaid,  to  wit, 

{q)  By  Stat.  4  &  5  Ph.  &  M.  c.  4,  all  persons  that  shall  maliciously  command, 
hire,  or  counsel  any  person  to  commit  petit  treason,  wilful  murder,  etc.,  every 
such  offender  being  attainted  or  who  shall  stand  mute,  etc.,  or  challenge  peremp- 
torily above  twenty,  etc.,  shall  be  excluded  from  tlie  benefit  of  clergy.  Though 
it  is  proper  to  introduce  the  words  of  the  statute  into  the  indictment,  yet  an  in- 
dictment has  been  holden  sufficient  which  wholly  drops  the  words  of  the  statute. 
Starkie,  C.  P.  421. 

VOL.  I.— 5  65 


(118)  ACCESSARIES. 

on  the  day  of  in  the  year  last  aforesaid,  at  afore- 

said, in  the  county  aforesaid,  did  knowingly  and  feloniously 
incite,  move,  procure,  aid,  abet,  counsel,  hire,  and  command  the 
said  A.  B.  to  do  and  commit  the  said  felony  and  larceny,  in 
manner  and  form  aforesaid,  against,  etc.  (r) 

(112)  Against  accessary  for  receiving  stolen  goods. 

(State  the  offence  against  the  princijKil  felon  as  above,  and  then  pro- 
ceed  as  follows): 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  A.  B.,  of         in  the  county  of  laborer,  after- 

wards, to  wit,  on  the  day  of        now  last  past,  at  B.  afore- 

said, in  the  county  aforesaid,  the  goods  and  chattels  aforesaid, 
to  wit,  one  pair  of  shoes  of  the  value  of  two  dollars  {here  state 
all  the  articles  found  upon  the  accessary,  their  value,  etc.),  so  as 
aforesaid  feloniously  stolen,  taken,  and  carried  away,  by  the  said 
A.  B.,  in  manner  aforesaid,  feloniously  did  receive  and  have,  and 
did  then  and  there  feloniously  aid  in  concealing  the  same;  he 
the  said  C.  D.  then  and  there  well  knowing  the  same  goods  and 
chattels  to  have  been  feloniously  stolen,  taken,  and  carried  away 
as  aforesaid,  against,  etc.(5) 

(113)  Against  accessary  for  receiving  the  principal  felon. 

[State  the  offence  against  the  principal  felon  as  in  the  next  preced- 
ing precedent,  and.  then  proceed  as  follows): 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  C.  D.,  of  in  the  county  of  yeoman,  well 

knowing  the  said  A.  B.  to  have  done  and  committed  the  felony 
and  larceny  aforesaid,  in  manner  and  form  aforesaid,  afterwards, 
to  wit,  on  the  day  of  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  at  B.  aforesaid,  in  the  county  afore- 
said, him  the  said  A.  B.   did   then  and   there  knowingly  and 

(r)  2  Stark.  C.  P.  ;  Cro.  C.  C.  124  ;  Davis's  Prec.  36. 

(.s)  2  Stark.  C.  P.  457.  This  form  is  given  by  Mr.  Davis,  as  good  under  the 
IMassaohusetts  statute.  Precedents,  38.  Wlien  the  prineipal  lias  been  convicted 
in  one  county,  and  the  stolen  goods  received  in  another,  the  form  will  be  the 
same  as  in  this  preci'dent,  the  conviction  of  the  princi])al  being  alleged  conforma- 
bly to  the  record  in  the  county  where  it  was  had.  For  precedents  for  the  statu- 
tory offence  of  receiving  stolen  goods,  see  iujra,  450  et  se({. 

i56 


ACCESSARIES.  (113) 

feloniously  receive,  harbor,  conceal,  and  maintain,  in  the  larceny 
and  felony  aforesaid,  against,  etc.(/) 

[  The  only  variation  between  indictments  against  accessaries  to  arson, 
mayhem,  robbery,  and  rape,  and  the  form  given  in  the  text,  is  that 
after  the  ivord  felony,  the  phrase,  '■'- and  arson,'' ^^  and  mayhem," 
"  and  robbery,"  "  and  rape,"  must  be  inserted  as  the  case  may  require. 
For  accessaries  after  the  fact  to  larceny,  see  infra,  450  et  seq.l 

[For  indictments  against  accessaries  before  the  fact  with  unknown 
principals  in  abortion,  see  infra,  208,  210c.] ' 

(f)  Davis's  Precedents,  367;  2  Stark.  C.  P.  456  ;  Cro.  C.  C.  124. 

67 


BOOK  III. 

OFFElSrCES  AGAIKST  THE  PERS0:N" 


CHAPTER  I. 

HOMICIDE,  (a) 

(114)  General  form  of  indictment. 

(115)  Mm-der.     By  shooting  with  a  pistol. 

(116)  Murder.     By  cutting  the  throat. 

(117)  Murder.     Against  principal  in  the  first  and  in  the  second  degree,  for 

shooting  with  a  pistol. 

(117a)  Murder  by  pistol-shot  in  Massachusetts. 

(1176)  Murder  by  pistol-shot  under  N.  Y.  statute,  with  counts  varying  in- 
strument. 

(117c)  Murder  by  shot-gun  under  Indiana  statute. 

(117d)  Murder  by  shooting  in  Iowa. 

(117^)  Information  in  Kansas  for  murder  by  shooting. 

(117/)  Murder  by  shooting  under  Nevada  statute. 

(118)  Against  principal  in  the  first  and  principal  in  the  second  degree. 

Hanging. 

(119)  Second  count.     Against  same.     Beating  and  hanging. 

(120)  Mui'der.  Striking  with  a  poker. 

(121)  Murder.  By  riding  over  with  a  horse. 

(122)  Murder.  By  drowning. 

(123)  Murder.  By  strangling. 

(124)  Second  count.     By  strangling  and  stabbing  with  unknown  per- 

sons. 

(125)  Murder.     By  burning  a  house  where  the  deceased  was  at  the  time. 

(126)  Second  count.     Averring  a  preconceived  intention  to  kill. 

(127)  Murder.     First  count,  by  choking.     Against  two — one  as  principal  in 

the  first  degree,  and  the  other  in  the  second  degree. 

(128)  Second  count,   by  choking  and   beating.      Against   two — one 

as  principal  in  the  first  degree,  the  other  in  second  degTce. 

(a)  See  in  full  Wh.  Cr.  L.  8th  ed.  §§  303  et  seq. 

68 


HOMICIDE. 

(129)  Murder.     By  poisoning  with  arsenic. 

(130)  Murder  by  poisoning.     First  count,  with  arsenic  in  chicken  soup. 

(131)  Second  count.     Against  one  defendant  as  principal  in  the  first, 

and  the  other  as  principal  in  the  second  degree. 

(132)  Third  count.     Against  one  as  principal  and  the  other  as  acces- 

sary before  the  fact. 

(133)  By  placing  poison  so  as  to  be  mistaken  for  medicine. 

(134)  Murder  of  a  child  by  poison. 

(135)  By  mixing  white  arsenic  with  wine,  and  sending  it  to  deceased,  etc. 

(136)  Murder  by  poisoning.    First  count,  mixing  white  arsenic  in  chocolate. 

(137)  Second  count.     Mixing  arsenic  in  tea. 

(138)  Murder  by  giving  to  the  deceased  poison,  and  thereby  aiding  her  in 

suicide. 
(138a)  Murder  by  administering  cantharides. 

(139)  Murder  in  the  first  degree  in  Ohio.     By  obstructing  a  railroad  track. 

(140)  Murder  in  the  first  degree  in  Ohio.     By  sending  to  the  deceased  a 

box  containing  an  iron  tube,  gunpowder,  bullets,  etc.,  artfully  ar- 
ranged so  as  to  explode  on  attempting  to  open  it. 

(141)  Murder  in  the  first  degree  in  Ohio.     By  a  father,  chaining  and  con- 

fining his  infant  daughter  several  nights  during  cold  weather  with- 
out clothing  or  fire. 

(142)  Second  count.     Not  alleging  a  chaining. 
(142a)  By  stabbing,  under  Ohio  statute. 

(143)  By  forcing  a  sick  person  into  the  street. 

(144)  Murder  of  an  infant  by  suffocation. 

(145)  Murder  by  stamping,  beating,  and  kicking. 

(146)  Murder  by  beating  with  fists  and  kicking  on  the  ground,  no  mortal 

wound  being  discovered. 

(147)  For  stabbing,  casting  into  the  sea,  and  drowning  the  deceased  on  the 

high  seas,  etc. 

(148)  Knocking  to  the  gi-ound,  and  beating,  kicking,  and  wounding. 

(149)  Murder  by  striking  with  stones. 

(150)  Murder  by  casting  a  stone. 

(151)  Murder  by  striking  with  a  stone. 

(152)  By  striking  with  an  axe  on  the  neck. 

(153)  By  striking  with  a  knife  on  the  hip,  the  death  occurring  In  another 

State. 

(155)  Murder  by  stabbing  with  a  knife. 

(156)  Murder.     Against  J.  T.  for  shooting  the  deceased,  and  against  A.  S. 

for  aiding  and  abetting. 
(156a)  Murder  In  producing  abortion. 

(157)  Murder  of  a  bastard  child. 
(157a)   Same  under  Maine  statute. 

(158)  Throwing  a  bastard  child  in  a  privy. 

(159)  Smothering  a  bastard  child  in  a  linen  cloth. 

(160)  Murder,  in  Pennsylvania,  of  a  bastard  child  by  strangling. 

(161)  Murder.  By  starving  apprentice. 

69 


OFFENCES    AGAINST    THE   PERSON. 

(162)  Mansliuighter  by  neglect.     First  count,  that  the  deceased  was  the 
apprentice  of  the  prisoner,  and  died  from  neglect  in  prisoner  to 
supply  him  -with  food,  etc. 
(1C3)  Second  count,  charging  killing  by  overwork  and  beating. 

(163a)  Homicide  of  wife  by  neglect  to  provide  necessaries. 

(164)  Manslaughter.     Against  a  woman  for  exposing  her  infant  child  so  as 

to  produce  death. 

(165)  Manslaughter.     By  forcing  an  aged  woman  out  of  her  house  in  the 

night,  tarring,  feathering,  beating,  and  whipping  her. 

(166)  Against  the  keeper  of  an  asylum  for  pauper  children,  for  not  supply- 

ing one  of  them  with  proper  food  and  lodging,  whereby  the  child 
died. 

(167)  Manslaughter,  by  striking  with  stone. 

(168)  Manslaughter.     By  giving  to  the  deceased  large  quantities  of  spirit- 

uous liquors,  of  which  he  died. 

(169)  Against  driver  of  a  cart  for  driving  over  deceased. 

(170)  Manslaughter.     Against  a  husband  for  neglecting  to  provide  shelter 

for  his  wife. 

(171)  Murder,  in  a  duel  fought  without  the  State.     Rev.  Sts.  of  Mass.  ch. 

125,  §  3. 

(172)  Manslaughter  in  second  degree  against  caj^tain  and  engineer  of  a 

steamboat,  under  New  York  Eev.  Statute,  p.  531,  §  46. 

(173)  Against  the  engineer  of  a  steamboat  for  so  negligently  managing  the 

engine  that  the  boiler  burst  and  thereby  caused  the  death  of  a 
passenger. 

(174)  Against  agent  of  company  for  neglecting  to  give  a  j^i'oper  signal  to 

denote  the  obstruction  of  a  line  of  railway,  whereby  a  collision  took 
place  and  a  passenger  was  killed. 

(175)  Against  the  driver  and  stoker  of  a  railway  engine,  for  negligently 

driving  against   another  engine,   whereby  the  deceased  met  liis 
death. 

(176)  Involuntary  manslaughter  in  Pennsylvania,  by  striking  an  infant  with 

a  dray. 

(177)  Murder  on  the  high  seas.     General  form  as  used  in  the  United  States 

courts. 
(177a)  Murder  by  shooting  on  high  seas. 

(178)  Murder  on  the  high  seas,  by  striking  with  a  handspike.     Adapted  to 

United  States  courts. 

(179)  Striking  with  a  glass  bottle,  on  the  forehead,  on  board  an  American 

vessel  in  a  foreign  jurisdiction.     Adapted  to  United  States  courts. 

(180)  Against  a  mother  for  drowning  her  child,  by  throwing  it  from  a  steam- 

boat on  Long  Island  Sound. 

Second  count.     Omitting  averment  of  relationship,  and  charg- 
ing the  sex  to  be  unknown. 

(181)  Murder  on  the  high  seas,  with  a  hatchet. 

(182)  Manslaughter  on  the  high  seas. 

Second  count.     Same  on  a  lon^-boat  belonging  to  J.  P.  Y.,  etc, 

70 


HOMICIDE — GENERAL   REQUISITES    OF    INDICTMENT.  (H^) 

(183)  Misdemeanor  in  concealino;  death  of  bastard  child  by  casting  it  in  a 

well,  under  the  Pennsylvania  statute. 

(184)  Same,  where  means  of  concealment  are  not  stated. 

(185)  Endeavor  to  conceal  the   birth  of  a  dead  child  under  the  English 

statute. 

(114)  General  Form  of  Indictmerit. 

That  A.  B.,(6)  late  of  the  parish  of  C,  in  the  count}^  of  P., 
laborer,  not  having  the  fear  of  God  before  his  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,(c)  on,  etc., 
with  force  and  arms,((:/)  at  the  parish  afore8aid,(e)  in  and  upon 
one  E.  F.,(/j  in  the  peace  of  God  and  of  the  said  commonwealth 
then  and  there  being,(^)  feloniously,  wilfully,  and  of  his  malice 
aforethought,(A)  did  make  an  assault  ;(z)  and  that  he  the  said  A. 
B.,  with  a  certain  knife(J)  of  the  value  of  sixpence,(Z:)  which  he 
the  said  A.  B.  in  his  right  hand  then  and  there  had  and  held,(/) 
him,(m)  the  said  E.  F.,  in  and  upon  the  left  side  of  the  breast  of 
him  the  said  E.  F.,(?;)  then  and  there(o)  feloniouslj^fp)  wilfully, 
and  of  his  malice  aforethought,(9')  did  strike,(r)  giving  to  the 
said  E.  F.,  then  and  there,  with  the  knife  aforesaid, (s)  by  the 
stroke  aforesaid,  in  manner  aforesaid,  in  and  upon  the  said  left 
side  of  the  breast  of  him(^)  the  said  E.  F.,  one  mortal  wound  of 
the  breadth  of  three  inches,  and  of  the  depth  of  six  inches  ;(;<) 
of  which  said  mortal  wound  the  said  E.  F.,  from  the  said  third 
day  of  August,  in  the  year  aforesaid,  until  the  fifteenth  day  of 
the  same  month  of  August,  in  the  year  aforesaid,  at  the  parish 
aforesaid,  did  languish,  and  languishing  did  live  ;(y)  on  which 
said  fifteenth  day  of  August,  in  the  year  aforesaid,  the  said  E. 
F.,  at  the  parish  aforesaid,  in  the  county  aforesaid,(i/;)  of  the 
wound  aforesaid,  died  ;(2r)and  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say  that  the  said  A.  B.,  him  the  said  E.F.,(y) 
in  manner  and  form  aforesaid,  feloniously,  wilfully,  and  of  his 
malice  aforethought,(^)  did  kill  and  murder.(a)  {Conclude  as 
in  book  1,  chap.  3.(6) 

(h)  As  the  distinction  between  principal  in  the  first  and  principal  in  second 
degree  is  only  artificial,  a  principal  in  the  second  degree  may  be  convicted  though 
indicted  as  a  principal  in  the  first  degree,  and  vice  versa.  Supra,  notes  to  97 
et  seq.  ;   Wh.  Cr.  L.  8th  ed.  §  521  ;   AVh.  Cr.  Ev.  §  102. 

An  agent's  act,  when  such  agent  is  the  instrument  of  the  principal's  purpose, 
may  be  laid  as  the  principal's  act.     Wh.  Cr.  L.  8th  ed.  §  522. 

An  averment,  however,  that  the  defendant  was  principal,  cannot  be  supported 

71 


(114) 


OFFENCES    AGAINST    THE    PERSON. 


at  common  law,  by  pj'oof  that  he  was  accessary  before  the  fact.  R.  v.  Scares, 
11.  &  Ft.  25;  11.  r'.  Fallon,  9  Cox  C.  C.  242;  State  v.  Wyckoti;  2  Vroom,  G5  ; 
Hughes  V.  State,  12  Ala.  458;  Josephine  c.  State,  39  Miss.  G13.  But  under 
recent  statutes,  accessaries  before  the  fact  may  be  charged  as  principals.  Wh. 
Cr.  L.  8th  ed.  §  522;  see  cases  cited,  supra,  to  97. 

(r)  These  words  are  unnecessary.  If  included  they  are  rejected  as  surplusage ; 
if  excluded  the  want  of  them  is  not  the  subject  of  exception. 

It  is  not  necessary  to  aver  the  defendant  to  be  of  sound  mind.  Fahnestock  v. 
State,  23  Ind.  231. 

(f/)  "Force  and  arms."  The  use  of  these  words  is  unnecessary;  and  In  one 
instance,  the  omission  of  them  in  an  indictment  for  murder  has  been  expressly 
sanctioned.  Terr.  v.  M'Farlan,  1  Mart.  16,  and  cases  cited,  supra,  in  notes  to 
book  1,  chap.  2. 

(e)  This  averment  must  be  so  made  as  to  bring  the  facts  within  the  jurisdic- 
tion.    See  authorities  cited  in  Wh.  Cr.  L.  8th  ed.  §  512. 

The  conflict  in  cases  where  the  blow  is  struck  in  one  State  and  the  death  is  in 
another  is  discussed  in  AYh.  Cr.  L.  8th  ed.  §§  289-292. 

Where  the  indictment  charged  that  the  defendant,  late  of  B.  County,  "at  the 
county  aforesaid,"  etc.,  it  was  held  that  this  was  sufficient  to  point  out  the  place 
where  the  offence  was  committed.     State  v.  Lamon,  3  Hawkes,  175. 

(/)  In  what  way  the  name  of  the  party  injured  must  be  set  forth,  has  been 
already  discussed.  Notes  to  book  1,  ch.  2  ;  Wh.  Cr.  PL  &  Pr.  §  96.  When  an 
officer  is  killed  in  execution  of  his  office,  his  special  official  station  need  not  be 
stated.  R.  v.  Mackally,  9  Co.  R.  68  ;  Boyd  v.  State,  17  Ga.  194  ;  Wright  v. 
State,  18  Ga.  383.  But  when  the  case  rests  on  a  peculiar  relationship,  e.  g., 
on  the  duty  to  supply  necessaries  to  an  infant,  this  relationship  must  be  stated. 
R.  v.  Waters,  2  C.  &  K.  862  ;  R.  v.  Goodwin,  1  Russ.  C.  &  M.  5G3. 

[(/)  These  words  do  not  need  proof,  and  may  be  omitted  without  prejudice. 
Arch.  C.  P.  10th  ed.  407;  Com.  v.  Murphy,  11  Cush.  492.  As  to  meaning  of 
words,  see  Wh.  C.  L.  8th  ed.  §  310. 

(/*)  These  words  have  always  been  held  necessary  (AVh.  Cr.  L.  8th  ed.  §  518)  ; 
If  the  qualiiicatlon  of  "  malice  aforethought"  be  omitted,  the  otlencc  drops  to  man- 
slaughter. In  Arkansas,  however.  It  would  seem  a  conviction  of  murder  can  rest 
on  an  Indictment  where  malice  aforethought  is  not  charged  (Anderson  v.  State, 
5  Pike,  445)  ;  and  in  Iowa  It  is  said  to  be  enough  to  aver  "  feloniously.  Intention- 
ally, wilfully,  maliciously,  and  deliberately."     State  v.  Neeley,  20  Iowa,  108. 

In  Ohio,  It  is  better  to  aver  an  Intent  to  kill  or  nnirdcr,  and  certainly  to  repeat 
the  Avords  of  the  statute,  requiring  that  the  act  be  done  "  purposely  and  of  delibe- 
rate malice."      See  post,  139. 

As  to  scienter  In  poisoning,  see  infra,  130. 

The  question  of  variance  in  cases  where  the  Intent  Is  to  kill  A.,  but  the  blow 
falls  on  B.,  is  discussed  In  Wh.  Cr.  L.  8th  ed.  ^  514. 

How  far  the  statutory  terms  as  to  Intent  must  be  followed.  Is  discussed  In  Wh. 
Cr.  L.  8th  ed.  §  393.     See,  also,  last  notes  to  this  form. 

(t)  As  to  this  allegation,  see  Wh.  C.  L.  8th  ed.  §  518.  The  "assault"  is 
omitted  In  indictments  for  negligent  homicides  without  violence.  R.  v.  Plummer, 
1  C.  &  K.  600  ;  R.  V.  Hughes,  7  Cox  C.  C.  301  ;  R.  i:  Friend,  R.  &  R.  20.  Bat 
the  assault  may.  In  any  view,  be  rejected  as  surplusage.  R.  v.  Ellis,  2  C.  &  R. 
470. 

(  /)  The  common  law  rule  in  pleading  the  Instrument  of  death  Is,  that  where 
the  instrument  laid  and  the  instrument  proved  are  of  the  same  nature  and  charac- 
ter, there  is  no  variance  ;  where  they  are  of  opposite  nature  and  character,  the 
contrary.  Wh.  Cr.  L.  8th  ed.  §  519,  and  cases  there  cited.  Thus  evidence  of 
a  dagger  will  support  the  averment  of  a  knife,  but  evidence  of  a  knife  will  not 
support  the  averment  of  a  pistol.  An  illustration  of  this  distinction  Is  found  In 
Com.  V.  Haines,  6  Pa.  L.  J.  232;  Wh.  Cr.  Ev.  §  91.  The  defendant  was 
charged  with  having  erected  a  stuffed  Paddj/  with  intent  to  libel  the  Catholic 
Irish  ;  and  he  endeavored  to  defend  himself  bv  proof  that  the  device  was  a  stulied 

72- 


HOMICIDE — GENERAL    REQUISITES    OF   INDICTMENT.  (114) 

ShelaJi,  and  the  object  was  to  annoy  the  Protestant  Irish.  The  instructions  of 
the  court  were  invoked  as  to  whether  there  was  a  variance ;  and  Gibson,  J.,  said 
that  if  there  was  a  mere  averment  of  a  Paddy,  and  evidence  of  a  Shelah,  the 
object  and  cliaracter  of  tlie  figures  being  simihir,  there  was  no  variance  ;  but  that 
if,  on  the  contrary,  they  were  devices  of  an  antagonistic  character,  the  indictment 
could  not  be  supported.  Where  the  method  of  operation  is  the  same  though  the 
instrument  is  diflerent,  no  variance  exists ;  where  the  former  is  not  the  case,  the 
rule  is  otherwise.  The  same  reasoning  applies  to  indictments  for  homicide.  Wh.  Cr. 
Ev.  §§  92-8.  Where  the  species  of  death  would  be  different,  as  if  the  indictment 
allege  a  stabbing  or  shooting,  and  the  evidence  prove  a  poisoning  or  starving,  the 
variance  is  fatal  (R.  v.  Briggs,  1  Mood.  C.  C.  318)  :  and  the  same  if  the  indictment 
state  a  poisoning,  and  tlie  evidence  prove  a  starving.  Thus  where  an  indictment 
stated  that  the  defendant  assaulted  the  deceased,  and  struck  and  beat  him  upon  the 
head,  and  thereby  gave  him  divers  moi'tal  blows  and  bruises,  of  which  he  died,  and 
it  appeared  in  evidence  that  the  death  was  by  the  deceased  falling  on  the  ground, 
in  consequence  of  a  blow  on  the  head  received  from  the  defendant ;  it  was  holden 
that  the  cause  of  the  death  was  not  properly  stated.  R.  v.  Thompson,  1  Mood. 
C.  C.  139  ;  Wh.  Cr.  Ev.  §  91.  But  if  it  be  proved  that  the  deceased  was 
killed  by  any  other  instrument,  as  with  a  dagger,  sword,  staff,  bill,  or  the  like, 
capable  of  producing  the  same  kind  of  death  as  the  instrument  stated  in  the  in- 
dictment, the  variance  will  not  be  material.  R.  v.  Mackall}',  9  Co.  67  a  ;  Gilb. 
Ev.  231  ;  R.  v.  Briggs,  1  Mood.  C.  C.  318,  and  cases  cited  in  Wh.  C.  L.  8th 
ed.  §  519.  So  if  the  indictment  allege  a  death  by  one  kind  of  poison,  proof  of  a 
death  by  another  kind  of  poison  will  support  the  indictment.  lb.  ;  and  see  2 
Hale,  115,  185  ;  2  HaAvk.  c.  23,  s.  84.  An  indictment  having  charged  that  the 
prisoner,  with  both  her  hands  about  the  neck  of  the  deceased,  the  neck  and  throat 
of  the  deceased  did  squeeze  and  press,  and  by  such  squeezing,  etc.,  did  suffocate 
and  strangle  the  deceased  ;  and  the  evidence  being  that  the  prisoner  suffocated  the 
deceased  by  placing  one  hand  on  his  mouth  and  the  other  on  the  back  of  his  head  ; 
Patteson,  J .,  held  that  it  was  sufficient  if  the  death  was  caused  by  suffocation,  and 
that  the  evidence  supported  the  indictment.  R.  v.  Culpin,  5  C.  &  P.  121.  And 
in  another  case  the  offence  being  charged  to  have  been  committed  with  a  certain 
sharji  instrument,  and  the  evidence  was  that  the  wound  was  partly  torn  and  partly 
cut,  and  was  done  with  an  instrument  not  sharp,  Parke,  B.,  held  the  indictment 
proved,  and  said  the  degree  of  sharpness  was  immaterial.  R.  v.  Grounsell,  7  C. 
&  P.  788.  And  where  an  indictment  for  the  murder  of  a  bastard  child  stated 
that  the  defendant  forced  and  thrust  moss  and  dirt  into  its  throat,  mouth,  and 
nose,  and  that  by  forcing  and  thrusting  the  moss  and  dirt  into  the  throat,  mouth, 
and  nose  of  the  child,  the  child  was  choked,  etc.,  and  it  appeared  that  the  child 
was  not  immediately  suffocated  by  the  moss  and  dirt,  but  that  the  moss  and  dirt 
caused  an  injury  and  inffammation  in  the  throat,  which  closed  the  passage  to  the 
lungs  and  stomach,  of  which  the  child  died  ;  it  was  declared  that  the  evidence 
supported  the  indictment,  and  that  it  was  sufficient  to  state  the  proximate  cause 
of  the  death,  without  stating  the  intermediate  process  resulting  from  that  proxi- 
mate cause.  R.  v.  Tye,  R.  &  R.  345.  Where  the  prisoner  was  indicted  for 
cutting  the  throat  of  the  deceased,  and  a  surgeon  proved  that  what  was  techni- 
cally called  the  throat  was  not  cut,  as  the  wound  did  not  extend  so  far  round  the 
neck,  Patteson,  J.,  held  that  the  indictment  must  be  understood  to  mean  what  is 
commonly  called  the  throat.  R.  v.  Edward,  6  C.  &  P.  401.  Where  the  indict- 
ment alleged  that  the  defendant  suffocated  the  deceased  by  placing  her  hand  on 
the  mouth  of  the  deceased,  and  the  jury  Ibund  that  the  death  was  caused  by  suf- 
focation, but  could  not  say  how  it  was  occasioned,  Denman,  C.  J.,  held  the  in- 
dictment proved.  R.  v.  Waters,  7  C.  &  P.  250.  But  under  an  indictment  for 
shooting  with  a  pistol  loaded  with  gunpowder  and  a  leaden  bullet,  it  appeared 
that  there  was  no  bullet  in  the  room  where  the  act  was  done,  and  no  bullet  in  the 
wound  ;  and  it  was  proved  that  the  wound  might  have  been  occasioned  by  the 
wadding  of  the  pistol,  Bolland,  B.,  Park  and  Parke,  J.,  held  the  indictment  not 
proved.     R.  v.  Hughes,  5  C.  &  P.  120.     "  Shooting"  is  not  sustained  by  proof 

73 


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OFFENCES    AGAINST    THE    PERSON. 


of  striking  -with  a  gun.  Giiedel  v.  People,  43  111.  226.  The  same  principle  was 
applied  where  an  indictment  charged  that  the  defendant  struck  the  deceased  with 
a  brick,  and  it  appeared  that  he  knocked  the  deceased  down  with  his  fist,  and 
that  the  deceased  fell  upon  a  brick  which  caused  his  death.  R.  v.  Kelly,  1 
Mood.  C.  C.  113.  See  to  same  effect,  State  i'.  Jenkins,  14  Rich.  (S.  C.)  215. 
In  New  York  a  far  more  liberal  rule  has  been  announced,  it  having  been  sub- 
stantially held  that  the  use  of  a  pistol  might  be  proved  under  an  indictment 
charging  the  weapon  to  have  been  a  knife.  People  v.  Colt,  3  Hill,  432.  See 
generally  Wh.  C.  L.  8th  ed.  §  519. 

In  most  States,  it  is  now  by  statute  unnecessary  to  state  the  instrument  of 
death.  These  statutes,  however,  do  not  apply  to  cases  of  death  caused  by  neg- 
lect, or  by  fright  induced  by  the  defendant's  misconduct,  without  any  particu- 
lar physical  instrument  of  injury  being  used.  In  such  cases,  as  well  as  at  common 
law,  the  indictment  must  set  forth  the  special  facts.  See  R.  v.  Pitts,  1  C.  &  M. 
284  ;  R.  V.  Waters,  6  C.  &  P.  328  ;  State  v.  Morrissey,  70  Me.  401,  and  cases 
detailed  in  Wh.  Cr.  L.  8th  ed.  §  519  et  seq. ;  infra,  156rt. 

It  is  enough  to  aver,  under  any  circumstances,  that  the  assault  was  made  "by 
some  means,  instruments,  and  weajjons,  to  the  jurors  unknown."  Wh.  C.  Ev, 
§  93  ;  State  v.  Wood,  53  N.  H.  484;  State  v.  Burke,  54  N.  H.  92;  Com.  r. 
Webster,  5  Cush.  295  ;  State  t'.  Williams,  7  Jones  N.  C.  446  ;  People  v.  Cronin,  34 
Cal.  191  ;  People  v.  Martin,  47  Cal.  96.    See  also  Com.  v.  Martin,  125  Mass.  394. 

(k)  The  allegation  of  value  is  now  immaterial,  and  need  not  be  proved.  In 
England,  where  deodands  are  still  recognized,  it  may  be  necessary  to  introduce 
it ;  though  the  same  object  does  not  exist  in  this  country.  In  the  edition  of 
Hale's  Pleas  of  the  Crown,  by  Messrs.  Stokes  and  Ingersoll,  i.  424,  will  be  found 
an  interesting  and  curious  exposition  of  the  law  of  deodands. 

(/)  Though  the  hand  in  which  the  instrument  was  held  is  set  out  in  the  old 
forms,  it  is  clearly  not  necessary  to  prove  it.  Arch.  C.  P.  10th  ed.  407  ;  Wh. 
C.  L.  8th  ed.  §  52*8  ;  Com.  v.  Costley,  118  Mass.  1  ;  Coates  u.  State,  72  111.  308. 

(m)  The  "him"  which  is  here  inserted  is  not  usually  introduced;  and  in 
several  cases  counts  have  been  sustained  without  it,  where  the  express  exception 
was  taken.  Com.  v.  White,  6  Biun.  183.  The  insertion,  however,  adds  to  per- 
spicuity. 

(n)  The  old  practice  was  to  state  in  what  part  of  the  body  the  deceased  was 
wounded  ;  and,  therefore,  if  it  be  said  that  the  wound  was  on  the  arm,  hand,  or 
side,  without  saying  whether  the  right  or  the  left,  it  is  bad.  2  Hale,  185  ;  con- 
tra, Whelchell  v.  State,  23  Ind.  89.  If,  however,  the  wound  be  stated  to  be  on 
the  left  side,  and  j^roved  to  be  on  the  right,  or  alleged  to  be  on  one  part  of  the 
body,  and  proved  to  be  on  another,  the  variance  is  immaterial.  2  Hale,  186. 
"  Upon  the  body"  is  now  a  sufficient  averment.  Sanchez  r.  People,  8  E.  P. 
Smith,  147  ;  Whelchell  v.  State,  23  Ind.  89  ;  Thompson  v.  State,  36  Tex.  326. 
See,  for  other  cases,  Wh.  C.  L.  8th  ed.  §  532. 

(o)  The  time  need  not  be  formally  repeated  ;  "then  and  there"  carries  the 
averment  back  to  the  original  date.  Stout  v.  Com.,  11  S.  &  R.  177.  Even  if  the 
"  then  and  there"  be  omitted,  it  would  seem  that  the  court  Avill  still  give  judg- 
ment on  the  indictment  if  the  grammatical  construction  be  such  as  to  apply  the 
time  at  the  outset  to  the  subsecjuent  allegations.  State  v.  Cherry,  3  ]\Iurph.  7. 
But  where  tAvo  distinct  periods  have  been  aveiTcd,  the  statement  "then  and 
there"  is  not  enough  ;  one  particular  time  should  be  averred.  Storrs  v.  State, 
3  Miss.  45.     See  sxpra,  note  on  time  to  book  1,  ch.  2. 

(p)   See,  as  to  the  repetition  of  "feloniously,"  AVh.  Cr.  PI.  &  Pr.  §  260. 

(f/)  The  repetition  of  this  phrase  in  this  place  has  been  held  to  be  unnecessary 
in  Korth  Carolina  (State  v.  Owen,  1  ]\Iurph.  452),  though  it  is  safer  to  intro- 
duce it.     Resp.  V.  Honeyman,  2  Dall.  228. 

(?■)  Wherever  death  is  caused  by  physical  violence,  it  is  proper  that  the  in- 
dictment should  allege  that  the  defendant  struck  the  deceased.  See  5  Co.  122  a  ; 
2  Hale,  184;  2  Hawk.  c.  53,  s.  82;  Wh.  C.  L.  8th  ed.  §530;  Edmondson 
V.  State,  41  Tex.  496  ;  and  this  must  also  be  proved,  though  in  Virginia  it  has 

74 


HOMICIDE — GENERAL    REQUISITES    OF    INDICTMENT.  (114) 

been  ruled  that  where  the  instrument  was  a  dagger,  "stab,  stick,  and  thrust," 
would  be  held  equivalent  to  strike.  Gibson  ?'.  Com.,  2  Va.  Cases,  111.  It  is 
not  necessary,  however,  to  prove  that  he  struck  him  with  the  particular  instni- 
ment  mentioned  in  the  indictment  ;  and  therefore,  although  the  indictment  allege 
that  the  defendant  did  strike  and  thrust,  proof  of  a  striking  which  produced  con- 
tused wounds  only  would  maintain  the  indictment.      Arch.  C.  P.  10th  ed.  486. 

"  Firinsi"  is  a  variance  from  "shooting;"  Shepherd  v.  State,  54  Ind.  25; 
and  so,  as  we  have  seen,  is  "striking;"  Guedel  v.  People,  43  111.  226.  Where 
"strike"  is  not  the  appropriate  term,  the  mode  of  injury  must  be  speciallv  de- 
scribed.    R.  V.  AVebb,  2  Lew.  196  ;   1  M.  &  Rob.  405 ;  ,R.  v.  Tye,  R.  &  R.'345. 

Where  the  indictment  charges  that  A.  struck,  etc.,  and  B.  abetted,  it  is  no 
variance,  if  it  appear  that  B.  struck  and  A.  abetted.  State  v.  Cockman,  1 
Wins.  (N.  C.)  No.  2,  95.     Supra,  notes  to  book  1,  chap.  3. 

(s)  The  indictment  must  distinctly  state  that  the  blow  was  struck  by  the  instru- 
ment alleged.  An  indictment,  however,  charging  "that  A.  B.  with  a  certain 
stick,  etc.,  in  and  upon  the  head  and  face  of  C.  D.  then  and  there  did  strike  and 
beat,  giving  to  the  said  C.  D.  then  and  there,  with  the  stick  aforesaid,  in  and 
upon  the  head  and  face  of  the  said  C.  D.,  several  mortal  wounds,  of  which  said 
several  mortal  wounds  the  said  C.  D.  instantly  died,"  is  good  ;  for  there  is  in  the 
first  clause  a  direct  allegation  of  a  stroke,  and  the  particle  c/iring,  and  the  words 
the7i  and  there,  conne(!t  the  allegation  with  the  mortal  wound  in  the  second  clause. 
Gibson  v.  Com.,  2  Va.  Cases,  111.  Where  the  allegation  was,  "  that  the  prisoner 
in  and  upon  M.  F.,  etc.,  feloniously,  etc.,  did  make  an  assault  with  a  certain  gun, 
called  a  rifle  gun,  etc.,  then  and  there  charged  with  gunpowder  and  two  leaden 
bullets,  which  said  gun  he,  etc.,  had  and  held,  at  and  against  the  said  M.  ¥., 
then,  etc.,  feloniously,  etc.,  did  shoot  ofi"and  discharge,  and  that  the  said  M.  F., 
with  the  leaden  bullets  aforesaid,  by  means  of  shooting  off  and  discharging  the 
said  gun,  so  loaded,  to,  at,  and  against  the  said  M.  F.,  as  aforesaid,  did,  etc., 
feloniously,  etc.,  strike,  penetrate,  and  wound  the  said  JNI.  F.,  in  and  upon  the 
left  side  of^  the  said  M.  F.,  etc.,  giving  to  her  the  said  M.  F.,  etc.,  with  the 
leaden  bullets  aforesaid,  by  means  of  shooting  off  and  discharging  the  said  gun, 
so  loaded,  to,  at,  and  against  the  said  M.  F.,  and  by  such  stricken,  etc.,  the  said 
M.  F.,  as  aforesaid,  one  mortal  wound  in  and  upon  the  left  side  of  the  said  M. 
F.,"  etc.  ;  on  a  motion  to  ai-rest  the  judgment,  on  the  ground  that  there  was  no 
sufficient  averment  that  the  gun  was  shot  off,  or  that  the  contents  were  discharged, 
it  was  said  that  the  inference  seemed  to  be  one  of  absolute  certainty,  that  the 
contents  of  the  gun  were  shot  off  and  discharged,  for  there  was  notiiing  else  to 
which  the  words  "did  shoot  off  and  discharge"  with  a  gun  charged  Avith  gun- 
powder and  leaden  bullets,  could  be  applied.     State  v.  Freeman,  1   Sj^ears,  57. 

(<)  The  insertion  of  the  pronoun  "him"  at  this  place,  though  not  usual,  tends 
to  help  the  grammatical  construction. 

(w)  The  wound  must  be  alleged  to  have  been  "  mortal,"  and  death  therefrom 
must  be  distinctly  averred.  Wh.  C.  L.  8th  ed.  §  536.  As  to  causal  relation  see 
ibid.  As  to  special  meaning  of  the  term  "wound,"  see  Wh.  Cr.  L.  8th  ed.  §  533. 
Whatever  once  may  have  been  thought,  it  is  now  settled  that  it  is  not  necessary 
to  state,  in  an  indictment  for  murder,  the  length,  breadth,  or  depth  of  the 
wound.  R.  v.  Mosely,  1  Mood.  C.  C.  97;  Com.  v.  AVoodward,  102  Mass.  155; 
West  V.  State,  48  Ind.  483.  And  of  a  "bruise"  no  dimensions  need  be  given. 
Turner's  Case,  1  Lew.  177  ;  State  v.  Owen,  1  Murph.  452.  And  so  as  to  incised 
wounds.  State  t'.  Conley,  39  Me.  78;  Com.  ii.  Chapman,  11  Cush.  422;  Dil- 
lon V.  State,  9  Ind.  122;  Lazier  v.  Com.,  10  Grat.  708;  Smith  v.  State,  43 
Tex.  643.  But  some  kind  of  wound,  in  cases  of  this  class,  must  be  averred.  It 
is  not  enough,  for  instance,  to  aver  that  the  death  of  an  infant  was  caused  by 
"ravishing."     R.  v.  Lad,  1  Leach,  38;   1  C.  &  M.  345. 

(r)  The  allegation  of  languishing,  though  it  ma}-  be  proper  in  the  cases  where 
there  actually  is  an  intermission  between  the  blow  and  the  death,  maybe  rejected 
as  sm-jjlusage  in  all  others.  Penn.  v.  Bell,  Add.  171,  175;  State  v.  Conley,  39. 
Me.  78. 

75 


(lU) 


OFFENCES    AGAINST    THE    PERSON. 


{w)  See  3  Ch.  C.  L.  735  ;  Bae.  Abr.  Tit.  Indict,  s.  4.  Th.at  this  is  necessary 
at  common  law,  see  Wh.  C.  L.  8th  ed.  §  358. 

(x)  The  dates  here  stated  in  the  indictment  need  not  be  proved  as  laid,  though 
an  indictment  upon  which  it  does  not  appear  that  the  death  happened  within  a 
year  and  a  day  after  the  wound  was  given,  is  fatally  defective  ;  because  when  the 
death  does  not  ensue  within  a  year  and  a  day  after  the  wound  is  intlicted,  the  law 
presumes  that  it  proceeded  from  some  other  cause.  State  v.  Orrell,  1  Dev.  139  ; 
People  V.  Aro,  6  Cal.  207  ;  Edmonson  v.  State,  41  Tex.  496.  All  that  is 
necessary  to  be  proved,  in  order  to  support  this  part  of  the  indictment,  is,  that 
the  deceased  died  of  the  wound  or  wounds  given  him  by  the  defendant,  within 
a  year  and  a  day  after  he  received  them  ;  as  otherwise  the  case  is  not  made 
out.  1  Hawk.  c.  23,  s.  90.  Where  it  appeared  that  the  man's  death  was  caused 
by  improper  applications  to  the  wound,  and  not  by  the  wound  itself,  the  defend- 
ant is  not  responsible  ;  though  if  a  man  be  wounded,  and  the  wound  turn  to  a 
gangrene  or  fever  for  want  of  proper  ap])lications,  or  from  neglect,  and  the  man 
die  of  the  gangrene  or  fever ;  or  if  it  become  fatal  from  the  refusal  of  the  party 
to  undergo  a  surgical  operation  (R.  v.  Holland,  2  M.  &  Rob.  351  j,  this  is 
homicide,  and  murder  or  not,  according  to  the  circumstances  under  which  the 
wound  was  given.  1  Hale,  421.  An  indictment  against  two  defendants,  which 
states  the  death  to  be  the  result  of  two  different  injuries  inflicted  by  each  of  the 
defendants  separately,  on  different  days,  is  bad.  R.  i\  Devett,  8  C.  &  P.  639. 
The  date  of  death  must  be  distinctly  averred.  State  v.  Conley,  39  Me.  78  ;  Les- 
ter V.  State,  9  Mo.  658;  State  v.  Mayfield,  66  Mo.  125;  Wh.  C.  L.  8th  ed.  §§ 
536-7.  "Immediately"  will  not  suffice.  State  v.  Testerman,  68  Mo.  408; 
AVh.  Cr.  Pi!  &  Pr.  §  132;  nor  "instantly"  without  "then  and  there."  R.  v. 
Brownlow,  11  A.  &  E.  119  ;  State  v.  Lakey,  65  Mo.  217  ;  State  v.  Steeley,  65 
JVlo.  218.  But  the  averment  "killed"  on  a  certain  day  involves  death  on  that 
day.  State  v.  Ryan,  13  IVIinn.  371.  The  term  "then  and  there"  has  been 
considered  in  the  notes  to  book  1,  ch.  2.  Variance  as  to  these  dates  is  not  fatal. 
AVh.  Cr.  PI.  &  Pr.  §  139  ;   State  v.  Haney,  67  X.  C.  467. 

(?/)  In  Michigan,  the  omission  of  this  averment  was  held  not  fatal,  after  convic- 
tion of  manslaughter.     Evans  v.  People,  12  Mich.  27. 

(z)  This  repetition  is  necessary.     State  v.  Heas,  10  La.  R.  195. 

(a)  The  second  count  of  indictment  for  murder  charged  J.  O.  B.  that  he,  "  on 
the  27th  of  May,  feloniously,  and  of  his  malice  aforethought,  struck  the  deceased 
with  a  stick,  of  which  said  mortal  wound  the  deceased  died  on  the  29th  of  May ; 
that  T.  R.,  D.  D.,  etc.,  on  the  day  and  year  first  aforesaid,  at  the  parish  afore- 
said, feloniously,  and  of  their  malice  aforethought,  Avere  present  aiding  and  abet- 
ting the  said  J.  0.  B.  the  felony  last  aforesaid  to  do  and  commit ;"  and  concluding, 
"  the  jurors,  etc.,  say  that  the  said  J.  O.  B.,  T.  R.,  D.  D.,  etc.,  him  the  deceased, 
in  manner  and  form  last  aforesaid,  feloniously,  and  of  their  malice  aforethought, 
did  kill  and  murder."  The  third  count  charged  T.  R.  that  he,  "on  the  27th 
day  of  May,  a  certain  stone  feloniously,  and  of  his  malice  aforethought,  cast  and 
threw,  and  which  said  stone,  so  cast  and  thrown,  struck  deceased,  of  which  mor- 
tal blow  the  deceased  died  on  the  29th  of  May;  and  that  J.  O.  B.,  D.  D.,  etc., 
were  present,  aiding  and  abetting,"  etc.,  as  in  the  first  count.  It  was  objected, 
1st,  that  the  indictment  was  inconsistent,  in  charging  the  principals  in  the  second 
degree  with  committing  the  felony  at  the  time  of  the  stroke,  whereas  it  was  no 
felony  till  the  time  of  the  death  ;  and,  2d,  that  the  general  verdict  of  guilty  left 
it  uncertain  which  was  the  cause  of  death,  the  stick  or  the  stone,  and  that  there- 
fore no  judgment  could  be  entered  on  either.  It  was  held,  1st,  that  the  form  of 
the  indictment  was  good ;  and,  2d,  that  the  alleged  generality  was  immaterial, 
the  mode  of  death  being  substantially  the  same.     R.  v.  O'Brian,  1  Den.  C.  C.  9. 

If  several  be  charged  as  principals,  one  as  principal  perpetrator,  and  the  others 
as  present,  aiding  and  abetting,  it  is  not  material  which  of  them  be  charged  as 
principal  in  the  first  degree,  as  having  given  the  mortal  blow,  for  the  mortal 
injury  done  by  any  one  of  those  present  is,  in  legal  consideration,  the  injury  of 
each  and  G\ery  one  of  them.     Fost.  551  ;    1  East,   P.  C.  350  ;  State  v.   Fley 

76 


HOMICIDE.  (115) 

(115)  31vrdei\     By  shooting  with  a  pistoL{c) 

That  A..  B.,  of,  etc.,  yeoman,  on  with  force  and  arms,  at 

in  the  county  aforesaid,  in  and  upon  the  body  of  one  C.  D., 
in  the  peace  of  said  commonwealtli  then  and  there  being,  felo- 
niously, wilfully,  and  of  his  malice  aforethought,  did  make  an 
assault ;  and  that  the  said  A.  B.,  a  certain  pistol,  of  the  value  of 
two  dollars,  then  and  there  charged  with  gunpowder  and  one 
leaden  bullet,  which  said  pistol,  he  the  said  A.  B.  in  his  right 
hand  then  and  there  had  and  held,  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought  did  discharge  and  shoot 
off',  to,  against,  and  upon  the  said  C.  D. ;  and  that  the  said  A. 
B.  with  the  leaden  bullet  aforesaid,  out  of  the  pistol  aforesaid, 
then  and  there,  by  force  of  the  gunpowder  aforesaid,  by  the  said 
A.  B.  discharged  and  shot  oft'  as  aforesaid,  then  and  there  felo- 
niously, wilfully,  and  of  his  malice  aforethought,  did  strike, 
penetrate,  and  wound  him  the  said  C.  D.  in  and  upon  the  right 
side  of  the  belly  of  him  the  said  C.  D.,  giving  to  him  the  said 

&  Rochelle,  2  Brev.  338;  State  i?.  Mair,  1  Coxe,  453.  See  notes  to  book  1, 
ch.  2,  supra. 

Where  the  deceased  was  killed  by  a  riotous  attack,  it  is  not  necessary  to  aver 
such  riot,  but  every  participant  is  chargeable  with. the  guilty  blow,  though  he  may 
not  have  struck  it  himself.  State  v.  Jenkins,  14  Rich.  (S.  C.)  215.  See  supra, 
note  to  forms  97,  114. 

If  the  actual  perpetrator  of  a  murder  should  escape  by  flight,  or  die,  those 
present,  abetting  the  commission  of  the  crime,  may  be  indicted  as  principals  ; 
and  though  the  indictment  should  state  that  the  mortal  injury  was  committed 
by  him  who  is  absent,  or  no  more,  yet  if  it  be  subseijuently  alleged  that  those 
who  are  indicted  were  present  at  the  perpetration  of  the  crime,  aud  did  kill  and 
murder  the  deceased,  by  the  mortal  injury  so  done  by  the  actual  perpetrator,  it 
will  be  sufficient.     State  v.  Fley,  2  Brev.  338. 

(6)  In  New  York,  though  a  common  law  indictment  for  murder  will  bring  the 
case  within  the  statutory  felony,  yet  there  can  be  no  conviction  under  it  unless 
the  offence  comes  up  to  the  grade  assigned  by  the  statute  to  a  felonious  and  in- 
tentional homicide.    People  v.  Enoch,  18  Wend.  159. 

■  In  Pennsylvania.  Com.  v.  White,  6  Binn.  183,  and  in  North  Carolina,  State 
V.  Dunckley,  3  Iredell,  117  (infra,  153),  the  statutory  conclusion  is  unnecessary, 
and  on  an  indictment  concluding  as  at  common  law,  the  statutory  punishment  may 
be  inflicted.  The  averments  of  malice  in  a  common  law  indictment  for  murder 
will  sustain  a  verdict  of  murder  in  the  first  degree  in  JNIaine,  New  Hampshire, 
Massachusetts,  New  York,  Pennsylvania,  Virginia,  Indiana,  Wisconsin,  Arkan- 
sas, Texas,  Nevada,  Minnesota,  and  California.  Wh.  Cr.  L.  8th  ed.  §  393.  In 
Connecticut  by  statute  special  degree  must  be  designated.  State  v.  Smith,  38 
Conn.  397.  In  Kansas  the  assault  must  be  averred  to  be  deliberate  and  pre- 
meditated. State  V.  Brown,  21  Kas.  38.  As  to  Iowa,  see  State  v.  McNally, 
32  Iowa,  81.      As  to  Missouri,  State  v.  Phillips,  24  Mo.  475. 

(c)  3  Chit.  C.  L.  170;  Davis's  Precedents,  170.     See  infra,  15G. 

77 


(116)  OFFENCES    AGAINST    THE    PERSON. 

C.  D.  tlien  and  there,  with  the  leaden  bullet  aforesaid,  so  as 
aforesaid  discharged  and  shot  out  of  the  pistol  aforesaid,  by  the 
said  A.  B.,  in  and  upon  the  right  side  of  the  belly  of  him  the 
said  C.  D.,one  mortal  wound  of  the  depth  of  four  inches,  and  of 
the  breadth  of  half  an  inch;  of  which  said  mortal  wound,  he 
the  said  C.  D.  then  and  there  instantly  died.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  A.  B., 
him,  the  said  C.  D.,  in  the  manner  and  by  the  means  aforesaid, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder.     {Conclude  as  in  book  1,  chap.  3.) 

(116)  Murder.    By  cutting  the  throat.{d) 

That  A.  B.,  of,  etc.,  on  at  in  the  county  aforesaid, 

with  force  and  arms,  in  and  upon  one  C.  D.  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  make  an  assault;  and  that 
the  said  A.  B.,with  a  certain  knife,  made  of  iron  and  steel,  which 
he  the  said  A.  B.  in  his  right  hand  then  and  there  had  and  held, 
the  throat  of  him  the  said  C.  D.  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  strike  aud  cut ;  and  that  the  said  A. 
B.,  with  the  knife  aforesaid,  by  the  striking  and  cutting  afore- 
said, did  then  and  there  give  to  him  the  said  C,  D.,  in  and  upon 
the  said  throat  of  him  the  said  C.  D.,  one  mortal  wound,  of  the 
length  of  three  inches,  and  of  the  depth  of  two  inches  ;  of  which 
said  mortal  wound  the  said  C.  D.,  from  the  said  day  of 

to  the  day  of        aforesaid,  at  aforesaid,  in  the 

county  aforesaid,  did  suffer  and  languish,  and  languishing  did 
live ;  on  which  said  daj'  of        aforesaid,  in  the  3^ear  afore- 

said, at  aforesaid,  in  the  county  aforesaid,  he  the  said  C. 

D.,  of  the  said  mortal  wound,  died.  And  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  A.  B.  him 
the  said  C.  D.,  in  manner  and  form  aforesaid,  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder.     {Conclude  as  in  chap.  3.) 

(f/)  3  Ch.  C.  L.  757;  Davis's  Precedents,  173. 

78 


HOMICIDE.  (117) 

(117)  Murder.     Against  principal  in  the  first  and  principal  in  the 
second{e)  degree,  for  shooting  with  a  instol.{f) 

That  T.  P.  K.,  late  of  the  said  county  of  Monroe,  lal^orer,  and 
D.  C,  late  of  said  county  of  Monroe,  laborer,  not  having  the  fear 
of  God  before  their  eyes,  but  being  moved  and  seduced  by  the 
instigation  of  the  devil,  on  the  fifth  daj^  of  October,  in  the  year 
of  our  Lord  eighteen  hundred  and  thirty-five,  with  force  and 
arms,  at  the  said  county  of  Monroe,  in  and  upon  one  P.  S. 
.  .  .  .  in  the  peace  of  God  and  of  the  said  State  of  Ala- 
bama, then  and  there  being,  feloniously,  wilfull}'',  and  of  their 
malice  aforethought,  did  make  an  assault ;  and  that  the  said  T. 
P.  K.,  a  certain  pistol  of  the  value  of  ten  dollars,  then  and  there 
loaded  and  charged  with  gunpowder  and  twenty  leaden  bullets, 
commonly  called  buckshot,  which  pistol  he,  the  said  T.  P.  K., 
in  his  right  hand,  then  and  there  had  and  held,  to,  against,  and 
upon  the  said  P., then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  shoot  and  discharge  ;  and  that  the  said 
T.  P.  K.,  with  the  leaden  bullets  aforesaid,  out  of  the  pistol 
aforesaid,  then  and  there,  by  force  of  the  gunpowder,  shot  and 
sent  forth,  as  aforesaid,  the  aforesaid  P.,  in  and  upon  the  but- 
tocks of  him  the  said  P.,  a  little  above  the  rectum  of  him  the 
said  P.,  then  and  there,  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  strike,  penetrate,  and  wound,  giving  to  the 
said  P.  then  and  there,  with  the  leaden  bullets  aforesaid,  com- 
monly called  buckshot,  as  aforesaid,  so  as  aforesaid  shot,  dis- 
charged, and  sent  forth  out  of  the  pistol  aforesaid,  by  the  said 
T.  P.  K.,  in  and  upon  the  said  buttocks  of  him,  the  said  P., 
a  little  above  the  rectum  of  him,  the  said  P.,  one  mortal  wound 
of  the  depth  of  six  inches,  and  of  the  breadth  of  half  an  inch, 
of  which  said  mortal  wound  the  said  P.,  from  the  said  fifth  day 
of  October,  in  the  year  of  our  Lord  eighteen  hundred  and  thirty- 
five,  until  the  thirteenth  of  the  same  month  of  October,  in  the 
year  last  aforesaid,  in  the  county  aforesaid,  did  languish,  and 
languishing  did  live ;  on  which  said  thirteenth  day  of  October, 

(e)  It  should  be  observed  that  the  party  indicted  as  principal  in  the  first 
degree  can  be  convicted  although  it  appear  that  he  was  only  ])rincipal  in  the 
second  degree;  and  so  of  tlie  converse.  State  v.  Cockman,  1  Wins.  (N.  C.) 
No.  2,  9.5.     See  supra,  97,  and  notes. 

(/)   This  form  was  sustained  in  State  v.  Coleman,  5  Port.  ?>2. 

79 


(117a)  OFFENCES    AGAINST    THE    PERSON. 

in  the  year  last  aforesaid,  the  same  P.,  at  the  county  aforesaid, 
of  the  mortal  wound  aforesaid,  died  ;  and  that  the  aforesaid  D. 
C,  then  and  there,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, was  present,  aiding,  helping,  abetting,  and  comforting, 
assisting  and  maintaining  the  said  T.  P.  K.,  the  felony  and  mur- 
der aforesaid,  in  manner  and  form  aforesaid,  to  do  and  commit. 
And  so  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say, 
that  the  said  T.  P.  K  and  the  said  D.  C,  the  said  P.  then  and 
there,  in  manner  and  form  aforesaid,  feloniously,  wilfully,  and 
of  their  malice  aforethought,  did  kill  and  murder.  {Conclude  as 
in  book  1,  chap.  3.) 

(117a)  Murder.     By  pistol  shot  in  Massachusetts. 

"  The  jurors  for,  etc.,  on  their  oath  present,  that  J.  H.  C,  etc., 
on,  etc.,  at,  etc.,  with  force  and  arms  in  and  upon  one  J.  H.,  felo- 
niously, wilfully,  and  of  his  malice  aforethought,  did  make  an 
assault ;  and  that  the  said  J.  II.  C,  a  certain  pistol  then  and 
there  charged  with  gunpowder  and  one  leaden  bullet,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
discharge  and  shoot  off  to,  against,  and  upon  the  said  J.  H.  ; 
and  that  the  said  J.  II.  C,  with  the  leaden  bullet  aforesaid,  out 
of  the  pistol  aforesaid,  then  and  there  by  the  force  of  the  gun- 
powder aforesaid,  by  the  said  J.  H.  C,  discharged  and  shot  off 
as  aforesaid,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  strike,  penetrate,  and  "wound  the  said 
J.  II.  in  and  upon  the  left  side  of  the  head  of  the  said  J.  H. ; 
giving  to  the  said  J.  H.  then  and  there,  with  the  leaden  bullet 
aforesaid,  so  as  aforesaid  discharged  and  shot  out  of  the  pistol 
aforesaid,  by  the  said  J.  H.  C,  in  and  upon  the  left  side  of  the 
head  of  the  said  J.  H.,  one  mortal  wound  of  the  depth  of  six 
inches  and  of  the  breadth  of  half  an  inch  ;  of  which  said  mortal 
wound  the  said  J.  H.  then  and  there  instantly  died.  And  so 
the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say  that  the  said 
J.  H.  C,  her,  the  said  J.  H.,  in  the  manner  and  by  the  means 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  kill  and  murder;  against  the  peace,"  etc.(^) 

(g)  Commonwealth  v.  Costly,  ITS  Mass.  1. 

80 


HOMICIDE.  (117^) 

(1176)  Murder.     By  'pistol   shot  (under  New    York   statute)^  with 
counts  varying  instruments  of  death. 

In  the  Court  of  Sessions  of  the  county  of  Albany.  Of  Sep- 
tember term,  in  the  year  of  our  Lord  one  thousand  eight  him- 
dred  and  seventy-three.  City  and  county  of  Albany,  ss :  The 
jurors  for  the  people  of  the  State  of  jSTew  York,  in  and  for  the 
body  of  the  city  and  county  of  Albany,  being  then  and  there 
sworn  and  charged  upon  their  oath,  present,  that  E.  L.,  late  of 
the  first  ward  of  the  city  of  Albany,  in  the  county  of  Albany 
aforesaid,  on,  etc.,  with  force  and  arras,  at  the  town  of  Water- 
vliet,  in  the  county  of  Albany  aforesaid,  in  and  upon  one  J.  D. 
W.,  then  and  there  being,  feloniously,  wilfully,  of  malice  afore- 
thought, and  from  a  deliberate  and  premeditated  design  to  effect 
the  death  of  said  J.  D.  W.,  did  make  an  assault:  and  that  the 
said  E.  L.,  a  certain  pistol,  then  and  there  charged  and  loaded 
with  gunpowder  and  one  leaden  bullet,  which  he,  the  said  E.  L., 
then  and  there  in  his  right  hand  had  and  held  at  and  against  the 
said  J.  D.  W.,  then  and  there  feloniously,  wilfully,  of  his  malice 
aforethought,  and  from  a  deliberate  and  premeditated  design  to 
effect  the  death  of  said  J.  D,  W.,  did  shoot  ofi'and  discharge; 
and  that  the  said  E.  L.,  with  the  leaden  bullet  aforesaid,  by 
means  of  shooting  off  and  discharging  the  said  pistol  so  loaded 
at  and  against  the  said  J.  D.  W.,  did  then  and  there  feloniously, 
wilfully,  of  his  malice  aforethought,  and  from  a  deliberate  and 
premeditated  design  to  effect  the  death  of  the  said  J.  D.  W., 
strike,  penetrate,  and  wound  the  said  J.  D.  W.  in  and  upon  the 
front  part  of  the  head  of  the  said  J.  D.  W.,  giving  to  him,  the 
said  J.  D.  W.,  then  and  there,  with  the  leaden  bullet  aforesaid, 
by  means  of  shooting  off  and  discharging  the  said  pistol  so 
loaded,  at  and  against  the  said  J.  D.  W.,  and  by  such  striking, 
penetrating,  and  wounding  the  said  J.  D.  W.  as  aforesaid,  one 
mortal  w^oun.d  in  and  through  the  head  of  him  the  said  J.  D. 
W.,  of  which  said  mortal  wound  the  said  J.  D.  W.  did  then  and 
there  soon  after  die.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  E.  L.,  him,  the  said  J.  D.W.,  in 
the  manner  and  by  the  means  aforesaid,  feloniously,  wilfully, 
of  his  malice  aforethought,  and  from  a  deliberate  and  premedi- 
tated design  to  effect  the  death  of  the  said  J.  D.  W.,  did  kill 

VOL.  I.— 6  81 


(1176)  OFFENCES    AGAINST    THE    PERSON. 

and  murder,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  of  the  people  of  the 
State  of  I^ew  York  and  their  dignity. 

Second  Count. — And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  fartlier  present,  that  E.  L.,  late  of  the  first  ward  of  the 
city  of  Albany,  in  the  county  of  Albany  aforesaid,  on,  etc.,  with 
force  and  arms,  at  the  town  of  Watervliet,  in  the   county  of 
Albany  aforesaid,  in  and  upon  one  J.  D.  VV.  then  and  there  being, 
feloniousl}^  wilfullj',   and  from  a  deliberate  and  premeditated 
design  to  effect  the  death  of  said  J.  D.  W.,  did  make  an  assault ; 
and  that  the  said  E.  L.  a  certain  pistol,  then  and  there  charged 
and  loaded  with  gunpowder  and  one  leaden  bullet,  which  he  the 
said  E.  L.  then  and  there  in  his  right  hand  had  and  held, at  and 
against  the  said  J   D.  W.,  then  and  there  feloniously,  wilfully, 
and  from  a  premeditated  and  deliberate  design  to  effect  the  death 
of  said  J.  D.  W.,  did  shoot  off  and  discharge;  and  that  the  said 
E.  L.,  with  the  leaden  bullet  aforesaid,  by  means  of  shooting  oft' 
and  discharging  the  said  pistol  so  loaded  at  and  against  the  said 
J.  D.  W.,  did  then  and  there  feloniouslj',  wilfully,  and  from  a 
deliberate  and  premeditated  design  to  ett'ect  the  death  of  the 
said  J.  D.  W.,  strike,  penetrate,  and  wound  the  said  J.  D.  W. 
in  and  upon  the  front  part  of  the  head  of  the  said  J.  D.  W.,  giv- 
ing to  him,  the  said  J.  D.  W.,  then  and  there,  with  the  leaden 
bullet  aforesaid,  by  means  of  shooting  off"  and  discharging  the 
said  pistol  so  loaded,  at  and  against  the  said  J.  D.  W.,  and  by 
such  striking,  penetrating,  and  wounding  the  said  J.  D.  W.  as 
aforesaid,  one  mortal  wound  in  and  through  the  head  of  him, 
the  said  J.  I).  W.,  of  which   said  mortal  wound  the  said  J.  D. 
W.  did  then  and  there  soon  after  die.     And  the  jurors  aforesaid, 
upon  their  oath   aforesaid,  do  say  that  the  said  E.  L.,  him  the 
said  J.  D.  W.  in  the  manner  and  by  the   means  aforesaid,  felo- 
niously, wilfully,  and  from  a  deliberate  and  premeditated   de- 
sign to  eft'ect  the  death  of  the  snid  J.  D  W.,  did  kill  and  murder, 
contrary  to  the  form  of  the  statute  in  such  such  case  made  and 
])rovided,  and  against  the  peace  of  the  people  of  the  State  of  Kew 
York  and  their  dignity. 

[Here  follow  fourteen  similar  counts  alleging  other  wounds 
by  other  shots.] 

Seventeenth  Count. — And  the  jurors  aforesaid,  uj)on  their  oath 
82 


HOMICIDE.  (1-1"^) 

aforesaid,  do  further  present  that  the  said  E.  L.,  on,  etc.,  at  the 
town  of  Watervliet,  in  the  coujity  of  Albany  aforesaid,  with  force 
and  arms,  in  and  uj)on  J.  T).  W.,  felonionsly,  wilfully,  of  malice 
aforethought,  and  from  a  deliberate  and  premeditated  design  to 
effect  the  death  of  said  J.  D.  W.,did  make  an  assault,  and  that 
the  said  E.  L.,  with  a  certain  razor,  which  lie,  the  said  E.  L.,  in 
his  right  hand,  then  and  there,  had  and  held,  the  throat  of  him, 
the  said  J.  D.  W.,  feloniously,  wilfully,  of  his  malice  afore- 
thought, and  from  a  deliberate  and  premeditated  design  to  effect 
the  death  of  the  said  J.  D.  W.,  did  strike  and  cut,  and  that  the 
said  E.  L.,  with  the  razor  aforesaid,  by  the  striking  and  cutting 
aforesaid,  did  then  and  there  give  to  him,  the  said  J.  D.  W.,  in 
and  upon  the  throat  of  him,  the  said  J.  D.  W.,  one  mortal  wound 
of  the  length  of  three  inches  and  of  the  depth  of  two  inches,  of 
which  said  mortal  wound  the  said  J.  D.  W.  did  suffer  and 
languish  at  the  town  of  Watervliet  in  the  said  county  of  Albany, 
and  that  soon  thereafter  the  said  J.  D.  W.,  at  the  said  town  of 
Watervliet  in  the  said  county  of  Albany,  on  the  said  fifth  day 
of  August,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  seventy-three,  of  the  said  mortal  wound,  did  die. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say 
that  the  said  E.  L.,  in  manner  and  form  aforesaid,  then  and  tliere 
feloniously,  wilfully,  of  his  malice  aforethought,  and  from  a  de- 
liberate and  premeditated  design  to  effect  the  death  of  the  said 
J.  D.  W.,  did  kill  and  murder,  contrarj'  to  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace  of  the 
people  of  the  IState  of  New  York  and  their  dignity. 

Eighteenth  Count. — And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  E.  L.,  on,  etc.,  at 
the  town  of  Watervliet,  in  the  county  of  Albany  aforesaid, 
with  force  and  arms  in  and  upon  said  J.  D.  W.,  feloniously, 
wilfully,  and  from  a  premeditated  design  to  efiect  the  death  of 
the  said  J.  D.  W.,  did  make  an  assault,  and  that  the  said  E.  L., 
with  a  certain  razor,  which  he,  the  said  E.  L.,  in  his  right  hand 
then  and  there  had  and  held,  the  throat  of  him,  the  said  J.  D. 
"W.,  feloniously,  wilfully,  and  from  a  deliberate  and  jtremedi- 
tated  design  to  effect  the  death  of  the  said  J.  1).  W.,  did  strike 
and  cut,  and  that  the  said  E.  L.,with  the  razor  aforesaid,  by  the 
striking  and  cutting  aforesaid,  did  then  and  there  give  to  him 

»3 


(117c)  OFFENCES    AGAINST    THE    PERSON. 

the  said  J.  D.  W.,  in  and  upon  the  throat  of  him,  the  said  J.  D. 
"W.,  one  mortal  wound  of  the  length  of  three  inches,  and  of  the 
depth  of  two  inches,  of  which  said  mortal  wound  the  said  J.  D. 
"W.  did  sutler  and  languish  at  the  town  of  Watervliet,  in  said 
county  of  Albany  ;  and  that  soon  thereafter  the  said  J.  D.  W., 
at  the  said  town  of  Watervliet,  in  the  said  county  of  Albany, 
on  the  said  fifth  day  of  August,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  seventy-three,  of  the  said  mortal 
wound  did  die. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say 
that  the  said  E.  L.,  him,  the  said  J.  D.  W.,  in  manner  and 
form  aforesaid,  then  and  there  feloniously,  wilfully,  and  from  a 
deliberate  and  premeditated  design  to  effect  the  death  of  said 
J.  D.  W.,  did  kill  and  murder,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace 
of  the  people  of  the  State  of  New  York  and  their  dignity. 

[Here  follow  four  other  similar  counts,  two  alleging  the  wounds 
by  a  knife  and  two  by  some  sharp  instrument  to  the  jurors  un- 
known.](A)  Nathaniel  C.  Moak,  District  Attorney. 

(117c)  Murder  by  shot-gun  under  Indiana  statute. 

The  grand  jurors  for,  etc.,  upon  their  oaths  present,  that  L.  V., 
on,  etc.,  at,  etc.,  did  then  and  there  unlawfully,  feloniously,  pur- 
posely, and  with  premeditated  malice,  kill  and  murder  M.  M., 
by  then  and  there  feloniously,  purposely,  and  with  premeditated 
malice,  shooting  and  mortally  wounding  the  body  and  person  of 
said  M.  M.,  with  a  gun  loaded  with  gunpowder  and  leaden  balls, 
which  he,  the  said  L.  V.,  then  and  there  in  his  hands  had  and 
held  ;  and  so  the  jurors  aforesaid,  on  their  oaths  aforesaid,  do 
charge  and  present,  that,  on  the  day  aforesaid,  in  the  manner  and 
form  aforesaid,  the  said  L.  V.  did  feloniously,  purposely,  and 
with  premeditated  malice,  kill  and  murder  the  said  M.  M.,  con- 
trary, etc.(f) 

{117d)  Murder  by  shooting  in  Iowa. 
The  said  G.  S.,  on,  etc.,  in,  etc.,  in  and  upon  the  body  of  one 

(A)  Under  this  indictment  the  defendiint,  Lowenstein,  was  convicted  and  exe- 
cuted.    See  Pamphlet  Report,  1874. 
(i)  Veatch  v.  State,  56  Ind,  584. 
84 


HOMICIDE.  (117e) 

"W.  P.,  then  and  there  being,  wilfully,  feloniously,  deliberately, 
preraeditatedly  by  lying  in  wait,  and  of  his  malice  aforethought, 
did  commit  an  assault  with  a  deadly  weapon,  being  a  pistol  then 
and  there  held  in  the  hands  of  the  said  G.  S.,  and  loaded  and 
charged  with  powder  and  bullet,  and  then  and  there  the  said 
G.  S.  did,  by  lying  in  wait  with  the  specific  intent  to  kill  and 
murder  the  said  W.  1'.,  wilfully,  feloniously,  deliberately,  pre- 
meditatedly,  and  of  his  malice  aforethought,  shoot  off  and  dis- 
charge the  contents  of  said  deadly  weapon,  being  the  powder 
and  bullet  aforesaid,  at,  against,  into,  and  through  the  head  and 
body  of  the  said  W.  P.,  thereby  wilfully,  feloniously,  deliber- 
ately, premeditatedly,  and  of  his  malice  aforethought,  inflicting 
upon  the  head  and  body  of  the  said  W.  P.,  a  mortal  wound,  of 
which  said  mortal  wound  the  said  W.  P.  then  and  there  did 
die.O') 

(117e)  Infonnation  in  Kansas  for  murder  by  shooting. 

And  now  comes  E.  F.  S.,  county  attorney  for  M.  County  and 
State  of  K.,  and  here  in  said  district  court,  in  the  name,  by  the 
authority,  and  on  behalf  of  the  State  of  K.,  information  gives: 
That  one  E.  A.  McC,  late  of  said  county  of  M.,  on,  etc.,  at,  etc., 
in  and  upon  one  L.  IT.,  then  and  there  being,  did  wilfully,  felo- 
niously, deliberately,  premeditatedly,  and  of  his  malice  afore- 
thought, make  an  assault  ;  and  that  the  said  E.  A.  McC,  a  cer- 
tain revolving  pistol,  then  and  there  charged  with  gunpowder 
and  divers,  to  wit,  three  leaden  bullets,  which  said  revolving 
pistol,  he  the  said  E.  A.  McC.  in  his  right  hand  then  and  there 
had  and  held,  then  and  there  wilfully,  feloniously,  deliberately, 
premeditatedly,  and  of  his  malice  aforethought,  did  discharge 
and  shoot  off,  to,  against,  upon,  and  through  the  said  L.  H. ; 
and  that  the  said  E.  A.  McC,  with  the  divers,  to  wit,  three 
leaden  bullets  aforesaid,  out  of  the  revolving  pistol  aforesaid 
then  and  there  by  force  of  the  gunpowder  aforesaid,  by  the  said 
E.  A.  McC  discharged  and  shot  off  as  aforesaid,  then  and  there 
wilfully,  feloniously,  deliberately,  premeditatedly,  and  of  his 

(y)  It  was  held  by  the  Supreme  Court:  1st.  That  this  indictniont  was  suili- 
cient  as  charjjing  murder  in  the  first  (h'fjree  ;  2d.  That  tlie  time  of  the  death  was 
suffieiently  alleged,  as  being  at  the  time  and  plaee  when  and  where  the  assault 
was  made  ;  3d.  That  the  indictment  was  sulReient  as  charging  that  deceased  was 
a  human  being.     State  v.  Stanley,  33  Iowa,  526. 

85 


(117/)  OFFENCES    AGAINST    THE    PERSON. 

malice  aforetlidught,  did  strike,  penetrate,  and  wonnd  the  said 
L.  H.,  in,  upon,  and  through  the  left  side  of  the  face  of  him  the 
said  L.  H.,  and  in,  upon,  and  through  the  right  side  of  the  lower 
part  of  the  breast  of  him  the  said  L.  H.,  and  in,  upon,  and 
through  the  right  side  of  the  body  of  him  the  said  L.  H.,  there- 
by then  and  there  giving  to  him  the  said  L.  H.,  in,  upon,  and 
through  the  left  side  of  the  face  of  him  the  said  L.  II.,  pene- 
trating through  the  face  and  head  of  him  the  said  L.  II.,  and 
in,  upon,  and  through  the  right  side  of  the  lower  part  of  the 
breast  of  him  the  said  L.  II.,  penetrating  through  the  body  of 
him  the  said  L.  IL,  and  in,  upon,  and  through  the  right  side 
of  the  body  of  him  the  said  L.  H.,  ]ienetrating  through  the  body 
of  him  the  said  L.  H.,  three  mortal  wounds,  of  which  said  three 
mortal  wounds  he  the  said  L.  H.,  then  and  there  instantly  died. 
Wherefore  the  said  county  attorney  doth  inform  the  Court  here, 
that  the  said  E.  A.  McC.  him,  the  said  L.  H.,  in  the  manner  and 
by  the  means  aforesaid,  wilfully,  feloniously,  deliberately,  pre- 
meditatedly,  and  of  his  malice  aforethought,  did  kill  and  mur- 
der, contrary,  etc.(7i) 

(117/)  Murder  by  shootivg  under  Nevada  statute. 

The  defendant  R.  II.  C,  above  named,  is  accused  by  the  grand 
jury  of,  etc.,  of  the  crime  of  murder  committed  as  follows,  to 
wit :  That  the  said  K.  H.  C,  on,  etc.,  or  thereabouts,  at,  etc.,  in 
and  upon  one  C.  T.  alias  "  M.  C,"  unlawfully,  feloniously,  wil- 
fully, and  of  his  mali('e  aforethought,  did  make  an  assault; 
and  that  the  said  R.  IL  C,  a  certain  pistol,  then  and  there 
charged  with  gunpowder  and  divers  leaden  bullets,  which  said 
pistol  he,  the  said  li.  II.  C,  in  his  hands  then  and  there  had 
and  held,  at  and  against  the  said  C.  T.  alias  "  M.  C,"  then  and 
there  unlawfully,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  shoot  off  and  discharge;  and  that  the  said  R.  H. 
C,  with  the  leaden  bullets  aforesaid,  by  means  of  shooting  oft* 
and  discharging  the  said  pistol  so  loaded,  to,  at,  and  against  the 
said  C.  T.  alias  "  AI.  C,"  as  aforesaid,  did  then  and  there  unlaw- 
fully, feloniously',  wilfully,  and  of  his  malice  aforethought,  strike, 
penetrate,  and  wound  the  said  C  T.  alias  "  M.  C,"  giving  him 

(k)   Approved  in  State  i'.  McCord,  8  Kas.  232. 

86 


HOMICIDE.  (1-18) 

the  said  C.  T.  alias  "  M.  C,"  then  and  there  with  the  leaden 
bullets  aforesaid,  by  means  of  shooting  oif  and  discharging  the 
said  pistol,  to,  at,  and  against  the  said  C.  T.  alias  "  M.  C,"  and 
by  such  striking,  penetrating,  and  wounding  the  said  C.  T. 
alias  "  M.  C."  as  aforesaid,  one  mortal  wound  in  and  upon  the 
arms,  side,  ribs,  lungs,  and  heart  of  him,  the  said  C.  T.  alias 
'^M.  C,"  of  which  said  mortal  wound  the  said  C.  T.  alias  "  M.  C." 
did  then  and  there  die.  All  of  which  is  contrary  to  the  form, 
ete.(0 

(118)  Against  principal  in  the  first  and  principal  in  the  second 
degree.     Hanging.{m) 

That  J.  J.,  late  of,  etc.,  yeoman,  and  P.  M.,  late  of,  etc.,  yeo- 
man, not  having  the  fear  of  God  before  their  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  on,  etc.,  with 
force  and  arms,  in  the  county  aforesaid,  in  and  upon  one  S.  C,  in 
the  peace  of  God  and  the  commonwealth  then  and  there  being, 
feloniously,  wilfully,  and  of  their  malice  aforethought,  did  make 
an  assault  ;  and  that  he,  the  said  J.  J.,  a  certaki  rope  of  the  value 
of  five  cents,  on  and  about  the  neck  of  her  the  said  IS.  C,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did  fix, 
tie,  and  fasten,  and  that  the  said  J.  J.  with  the  rope  aforesaid,  so 
as  aforesaid  fastened  on  and  about  the  neck  of  her  the  said  S.  C, 
her  the  said  S.  C.  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  choke,  sufi;bcate,  and  strangle,  of  which 
said  choking,  suflbcatiiig,  and  strangling,  she  the  said  S.  C.  then 
and  there  instantly  died  ;  and  that  the  said  P.  M.,  at  the  time  of 
committing  the  felony  and  murder  aforesaid  by  the  said  J.  J.  in 
mannerand  form  aforesaid,  feloniously,  wilfully, and  of  his  mal- 
ice aforethought,  was  present,  aiding,  helping,  and  abetting, 
assisting,  comforting,  and  maintaining  the  said  J.  J.,  the  felony 
and  murder  aforesaid  in  manner  and  form  aforesaid,  to  do,  com- 
mit, and  perpetrate.  And  so  the  inquest  aforesaid,  upon  their 
oaths  and  affirmations  aforesaid,  do  say,  that  the  said  J.  J.  and 
P.  M.,  her  the  said  S.   C,  then  and   there  in  manner  and  form 

(/)  It  was  said  in  State  v.  Crozier,  1 2  Nev.  300,  that  this  indictment  was  sufficient 
to  sustain  a  verdict  for  murder  in  the  first  degree,  without  the  use  of  the  words 
deliberately  and  premeditatedly. 

(m)  Drawn  in  1807  by  Mr.  J.  B.  M'Kean,  and  sustained  by  the  Supreme 
Court  of  Pennsylvania. 

87 


(119)  OFFENCES    AGAINST    THE   PERSON. 

aforesaid,  feloniously,  wilfully, and  of  their  malice  aforethought, 
did  kill  and  murder, contrary, etc.  {Concludeas  in  book  1,  cluqjter  3.) 

(119)  Second  count.     Against  same.     Beating  and  hanging. 

And  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  the  said  J.  J.  and  P.  M.,  not 
having  the  fear  of  God  before  their  eyes,  but  being  moved  and 
seduced  by  the  instigation  of  the  devil,  on,  etc.,  with  force  and 
arms  in  the  county  aforesaid,  in  and  upon  the  said  S.  C,  in  the 
peace  of  God  and  the  commonwealth  then  and  there  being,  felo- 
niously, wilfully,  and  of  their  malice  aforethought,  did  make  an 
assault,  and  that  he  the  said  J.  J.  with  a  certain  large  stick  of 
no  value,  which  he  the  said  J.  J.  in  his  right  hand  then  and 
there  had  and  held,  her  the  said  S.  C.  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  divers  times  did  strike 
and  beat,  giving  to  her  the  said  S.  C.  then  and  there,  by  striking 
and  beating  of  her  the  said  S.  0.  as  aforesaid,  with  the  stick 
aforesaid,  in  and  upon  the  back  part  of  the  head  of  her  the  said 
S,  C,  one  mortal  bruise  ;  and  that  the  said  J.  J.  also  a  certain 
rope  of  the  value  of  five  cents,  on  and  about  the  neck  of  her  the 
said  S.  C,  then  and  there  feloniously  and  wilfully,  and  of  his 
malice  aforethought,  did  fix,  tie,  and  fasten,  and  that  the  said 
J,  J.  with  the  rope  last  aforesaid,  so  as  last  aforesaid  fixed,  tied, 
and  fastened  on  and  about  the  neck  of  her  the  said  S.  C,  then 
and  there  did  violently  squeeze,  press,  and  bind  her  the  said  S. 
C. ;  of  which  said  striking  and  beating  of  her  the  said  S.  C,  in 
and  upon  the  back  part  of  the  head  of  her  the  said  S.  C.  with 
the  stick  aforesaid,  and  also  of  the  squeezing,  pressing,  and  bind- 
ing of  the  neck  of  her  the  said  S.  C.  with  the  rope  as  last  afore- 
said, she  the  said  S.  C.  then  and  there  instantly  died ;  and  that 
the  said  P.  M.,  at  the  time  of  committing  the  felony  and  murder 
last  aforesaid,  by  the  said  J.  J.  in  manner  and  form  last  afore- 
said, feloniously,  wilfully,  and  of  his  malice  aforethought,  was 
present  aiding,  helping,  abetting,  and  assisting,  comforting,  and 
maintaining  the  said  J.  J.,  the  felony  and  murder  last  aforesaid 
in  manner  and  form  last  aforesaid  to  do,  commit,  and  perpetrate. 

And  so  the  inquest  aforesaid,  upon  their  oaths  and  affirma- 
tions aforesaid,  do  further  say,  that  the  said  J.  J.  and  P.  M.,  her 
the  said  S.  C.  then  and  there  in  manner  and  form  last  aforesaid, 
88 


HOMICIDE.  (121) 

feloniously  and  wilfully  and  of  their  malice  aforethought  did 
kill  and  murder,  contrary,  etc.    {Conclude  as  in  book  1,  chapter  3.) 

(120)  Murder.     Striking  with  a  poker.{n) 

That  C.  D.,  of  said  B.,  laborer,  on  the  day  of  now 

last  past,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  in  and  upon  one  E.  F.,  feloniously,  wilfully,  and  of  his 
malice  aforethou2;;ht,  did  make  an  assault ;  and  that  he  the  said 
C,  D.  then  and  there  with  a  certain  iron  poker,  which  he  the 
said  C.  D.  in  both  his  hands  then  and  there  had  and  held,  the 
said  E.  F.,  in  and  upon  the  back  part  of  the  head  of  him  the 
said  E.  F.,  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  strike,  giving  unto  him  the  said  E.  F.  then  and 
there,  with  the  said  iron  poker,  by  the  stroke  aforesaid,  in  man- 
ner aforesaid,  in  and  upon  the  back  part  of  the  head  of  him  the 
said  E,  F.,  one  mortal  wound,  of  the  length  of  three  inches,  and 
of  the  depth  of  one  inch  ;  of  which  said  mortal  wound,  he  the 
said  E.  F.,  on  the  said  day  of  at  B.  aforesaid,  in  the 

county  aforesaid,  did  languish,  and  languishing  did  live;  on 
which  same  day  of  aforesaid,  at  B.  aforesaid,  in  the 

county  aforesaid,  he  the  said  E.  F.,  of  the  said  mortal  wound, 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
say  that  the  said  C.  D.  him  the  said  E.  F.,  in  manner  and  form 
aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  kill  and  murder.     {Conclude  as  in  book  1,  chajjter  3.) 

(121)  Murder.     By  riding  over  with  a  horse.{o) 

That  C.  D.,  of  said  B.,  laborer,  on  the  day  of  now 

last  past,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  in  and  upon  one  E.  F.,  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  make  an  assault ;  and  that  the  said 
C.  D.,  then  and  there  riding  upon  a  horse,  the  said  horse  in  and 
upon  the  said  E.  F.  then  and  there  feloniously,  wilfully,  and  of 
his  malice  aforethought,  did  ride  and  force,  and  him  the  said  E. 
F.,  with  the  horse  aforesaid,  then  and  there,  by  such  riding  and 
forcing  as  aforesaid,  did  throw  to  the  ground  ;  by  means  whereof 
the  said  horse,  with  his  hinder  feet,  him  the  said  E.  F.,  so  thrown 

(n)  3  Chit.  C.  L.  761;  Davis's  Precedents,  175. 

(o)  3  Chit.  C.  L.  765  ;  2  Stark.  C.  P.  380  ;  Davis's  Precedents,  177. 

89 


(123)  OFFENCES    AGAINST    THE    PERSON. 

to  and  upon  the  ground  as  aforesaid,  in  and  upon  the  back  part 
of  the  head  of  hitu  the  said  E.  F.,  did  then  and  there  strike  and 
kick,  thereby  then  and  there  giving  to  hira  the  said  E.  F.  in  and 
upon  the  back  part  of  the  head  of  him  tiie  said  E.  F.,one  mortal 
fracture  and  contusion,  of  the  breadth  of  two  inches,  and  of  the 
depth  of  one  inch  ;  of  which  said  mortal  fracture  and  contusion, 
the  said  E.  F.  then  and  there  instantly  died.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  C. 
D.  him  the  said  E.  F.,  in  manner  and  form  aforesaid,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder. 
{Conclude  as  in  book  1,  chapter  3.) 

(122)  Harder.     By  drowning. 

That  C.  D.,  of  said  B.,  laborer,  on  the  day  of  now 

last  past,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  in  and  upon  one  E.  F.,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  make  an  assault ;  and  that  the  said  C. 
D.  then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  take  the  said  E.  F.  into  both  the  hands  of  him  the 
said  C.  D.,  and  did  then  and  there  feloniously,  wilfully,  and  of 
his  malice  aforethought,  cast,  throw,  and  push  the  said  E.  F.  into 
a  certain  pond  there  situate,  wherein  there  was  a  great  quantity 
of  water;  by  means  of  which  said  casting,  throwing,  and  pushing 
of  the  said  E.  F.  into  the  pond  aforesaid,  by  the  said  C.  D.  in 
form  aforesaid,  he  the  said  E.  F.,  in  the  pond  aforesaid,  with 
the  water  aforesaid,  was  then  and  there  choked,  suffocated,  and 
drowned  ;  of  which  said  choking,  suffocation,  and  drowning,  he 
the  said  E.  F.  then  and  there  instantly  died.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D., 
in  manner  and  form  aforesaid,  him  the  said  E,  F.  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder.(^) 
{Conclude  as  in  book  1,  chapter  3.) 

(123)  3Iurder.      By  strangling. [q) 
That  E.  W.  K.,  late,  etc.,  not  having  the  fear,  etc.,  but  being 
moved,  etc.,  on,  etc.,  in  and  upon  one  J.  D.,  in  the  peace,  etc., 

{v)  3  Chit.  C.  L.  768;  Davis's  Precedents,  181. 

\q)  This  indictment,  with  a  little  qualification  in  the  first  count,  is  the  same 
with  that  sanctioned  by  the  Supreme  Court  of  North  Carolina  in  State  v.  Ha- 
ney,  2  Dev.  432.      "It  is  lastly  urged,"  said  the  court,  "that  upon  a  critical 

90 


HOMICIDE.  (124) 

feloniously,  wilfully,  and  of  his  malice  aforethought,  did  make 
an  assault,  and  that  the  said  E.  W.  K.  a  certain  rope  about  the 
neck  of  the  said  J.  D.  then  and  there  feloniously  and  wilfully, 
and  of  his  malice  aforethought,  did  fix,  tie,  and  fasten,  and  that 
the  said  E.  W.  K.  with  the  rope  aforesaid,  {him)  the  said  J.  D. 
then  and  there  feloniously  and  wilfully,  and  of  his  malice  afore- 
thought, did  drag,  pull,  choke,  strangle,  and  dislocate  the  neck; 
of  which  said  dras-frins^,  iJullino-  chokiuii:,  strano-lino;  and  disloca- 
tion  of  the  neck,  he  the  said  J.  D.  then  and  there  instantly  died. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  E.  W.  K.,  in,  etc.,  the  said  J.  D,  in  manner  and 
form  aforesaid,  feloniously  and  wilfullj',  and  of  his  malice  afore- 
thought, did  kill  and  murder.     {Conclude  as  in  hook  1,  chapter  3.) 

(124)  Second  count.     By  strangling  and  stabbing  with  unknown 

persons. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  E.  W.  K.  with  divers  other  persons,  etc., 
afterwards,  to  wit,  etc.,  not  having  the  fear,  etc.,  in  and  upon 
the  said  J.  D.  in  the  peace,  etc.,  feloniously,  wilfully,  and  of  their 
malice  aforetljought,  did  make  an  assault,  and  that  the  said  E. 
W.  K.  a  certain  rope  about  the  neck  of  the  said  J.  D.  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
fix,  tie,  and  fasten  ;  and  that  the  said  E.  W.  K.  by  means  of  said 
rope,  him  the  said  J.  D.  then  and  there  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  drag,  pull,  choke,  and  strangle; 

construction  of  the  indictraent,  it  does  not  more  appear,  that  Kimbroiigh  drapijed, 
pulled,  and  choked  Davis,  than  that  Davis  dragged,  pulled,  and  choked  Kim- 
brough.  However  this  may  be  upon  the  first  count,  I  think  no  such  objection  as 
this  appears  on  the  second.  In  that  count  it  is  charged  that  Kimbrough  made  an 
assault  upon  Davis,  and  that  Kimbrough  placed  a  rope  around  Davis's  neck,  and 
that  the  same  Kimbrough,  by  means  of  said  rope,  the  said  John  Davis  did  choke 
and  strangle ;  and  the  said  Kimbrough,  with  a  dagger,  which  he  then  in  his  hand 
held,  the  said  John  Davis,  in  and  u])on  the  belly  of  the  said  John  Davis,  did 
thrust  and  penetrate,  giving  to  him  the  said  John  Davis,  with  the  said  dagger, 
in  and  upon  the  belly  of  him  the  said  John  Davis,  a  mortal  wound,  of  which 
the  said  -John  Davis  died  on  the  next  day ;  Avith  a  conclusion,  that  he  the  said 
Kimbrough,  the  said  John  Davis  did  kill  and  murder  Human  ingenuity  can- 
not make  out  of  this,  that  it  stands  indifferent,  whether  Kimbrough  or  DaA'is 
was  the  actor  in  all  and  every  act  necessary  to  constitute  murder,  or  which  was 
the  agent  and  which  the  sufferer,  not  only  in  the  close  of  the  drama,  but  in  each 
and  every  act  which  led  to  the  catastrophe." 

The  difficulty  raised  as  to  the  first  count  is  obviated  by  the  Insertion  of  "  him" 
in  the  seventh  line.     See  infra,  128,  160,  for  similar  forms. 

91 


(125)  OFFENCES    AGAINST    THE    PERSON. 

and  that  the  said  E.  W.  K.  with  a  certain  drawn  dagger,  being 
part  of  a  walking  cane,  etc.,  which  he  the  said  B.  W.  K.  in  his 
right  hand  then  and  there  had  and  held,  him  the  said  J.  D.  in 
and  upon  the  forepart  of  the  belly  and  divers  other  parts  of  the 
body  of  the  said  J.  D.  then  and  there,  feloniously,  wilfully,  and 
of  his  "malice  aforethought,  did  strike,  thrust,  and  penetrate, 
giving  to  the  said  J.  D.  then  and  there,  with  the  dagger  afore- 
said, in  and  upon  the  aforesaid  forepart  of  the  belly  and  divers 
other  parts  of  the  body. of  the  said  J.  D.,  several  mortal  wounds 
of  the  breadth  of  one  inch,  and  of  the  depth  of  six  inches:  as 
well  of  which  pulling,  dragging,  choking,  and  strangling,  as 
also  of  the  striking,  thrusting,  and  penetrating,  etc.,  he  the  said 
J.  D.  from,  etc.,  until,  etc.,  did  languish,  etc.,  on  which,  etc.,  the 
said  J.  D.  in,  etc.,  of  the  pulling,  dragging,  choking,  and  stran- 
gling, as  well  as  of  the  mortal  wounds  inflicted  as  aforesaid,  died ; 
and  that  divers  other  [)ersons,  etc.  And  so  tli,e  jurors,  etc.,  do 
further  say,  that  the  said  E.  'W.  K.  and  divers  other  persons,  the 
said  J.  D.  then  and  there  in  manner  and  form  last  aforesaid, 
feloniously,  wilfully,  and  of  their  malice  aforethought,  did  kill 
and  murder.     {Conclude  as  in  hook  1,  chapter  3.) 

(125)  Harder.     By  burning  a  house  where  the  deceased  was  at  the 

time.{s) 

That  S.  C,  late,  etc.,  not  having  the  fear  of  God  before  his 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  on  the  fifth  day  of  April,  one  thousand  eight  hundred  and 
thirty,  with  force  and  arms,  etc.,  at  the  township  aforesaid,  in 
the  county  aforesaid,  and  within  the  jurisdiction  of  this  court, 
did  wilfully  and  maliciously  burn  a  certain  dwelling-house  of 
one  E,.  S.,  there  situate,  and  that  one  J.  H.,  of  the  township  and 
county  aforesaid,  within  the  jurisdiction  aforesaid,  in  the  said 
dwelling-house  then  and  there  being,  before,  at,  and  during  the 
said  burning,  and  was  then  and  there,  by  reason  and  means  of 
the  said  burning  po  committed  and  done  by  the  said  S.  C,  in 
manner  aforesaid,  mortally  burned  and  killed  ;  and  so  the  jurors 
aforesaid,  upon  their  oaths  aforesaid,  do  say,  that  the  said  S.  C, 
him  the  said  J.  II.,  in  manner  and  form  aforesaid,  feloniously 

(s)  State  V.  Cooper,  1  Green,  362.  See  infra,  1154,  for  the  subsequent  action 
of  the  court  on  this  indictment. 

92 


HOMICIDE.  (127) 

and  wilfully,  and  of  his    malice    aforethought,  did  kill  and 
murder.     (Conclude  as  in  book  1,  chapter  3.) 

(126)  Second  count.     Averring  a  'preconceived  intentioyi  to  kill. 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further 
present,  that  the  said  S.  C,  not  having  the  fear  of  God  before 
his  eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  and  of  his  malice  aforethought  contriving  and  intending 
one  J.  H.,  there  being  in  a  certain  dwelling-house  of  one  R.  S., 
situate  in  the  township  and  county  aforesaid,  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  to  burn,  kill,  and  murder, 
on  the  same  day  and  year  aforesaid,  with  force  and  arms,  at  the 
township  aforesaid,  in  the  county  and  within  the  jurisdiction 
aforesaid,  did  wilfully  and  maliciously  set  fire  to  and  burn  the 
said  dwelling-house,  the  said  J.  H.  then  and  there,  before,  at,  and 
during  the  said  burning,  being  in  the  said  dwelling-house,  he 
the  said  S.  C,  then  and  there  well  knowing  the  said  J.  11.  to  be 
in  the  said  dwelling-house,  and  that  he  the  said  S.  C,  in  so  set- 
ting fire  to  and  burning  the  said  dwelling-house  as  aforesaid, 
then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  mortally  burn  the  body  of  the  said  J.  H. ;  by  means 
of  which  said  mortally  burning  of  the  body  of  the  said  J.  IL,  as 
aforesaid,  he,  the  said  J.  H.,  on  the  day  and  year  aforesaid,  at 
the  township  aforesaid,  in  the  county  and  within  the  jurisdiction 
aforesaid,  did  die  ;  and  so  the  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  say  that  the  said  S.  C,  the  said  J.  H.,  in  manner 
and  form  aforesaid,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  kill  and  murder,  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(127)  Murder.    First count.,bychokiyig.     Against  two — one  as  prin- 
cipal in  the  first  degree^  and  the  other  in  the  second  degree. 

That  J.  W.,  late  of  the  county  aforesaid,  yeoman,  and  H.  ^N"., 
late  of  the  county  aforesaid,  widow,  not  having  the  fear  of  God 
before  their  eyes,  but  being  moved  and  seduced  by  the  instiga- 
tion of  the  devil,  on  the  tenth  day  of  April,  in  the  year  one 
thousand  eight  hundred  and  twenty-five,  at  the  county  aforesaid, 
and  within  the  jurisdiction  of  this  court,  with  force  and  arms,  in 
and  upon  one  G.  II.  W.,  iu  the  peace  of  God  and  of  the  com- 

93 


(128)  OFFENCES    AGAINST    THE    PERSON. 

monwealth  then  and  there  being,  feloniously,  wilfully,  and  of 
their  malice  aforethought,  did  make  an  assault,  and  that  he  the 
said  J.  W.,  a  certain  muslin  handkerchief  of  the  value  of  twelve 
cents,  about  the  neck  of  him  the  said  G.  H.  W.,  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  fix,  tie, 
and  fasten,  and  that  the  said  J.  W.,  with  the  muslin  handker- 
chief aforesaid,  him  the  said  G.  H.  W.,  then  and  there  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  did  choke,  suffo- 
cate, and  strangle;  of  which  said  choking,  suifocating,  and 
strano-lino",  he  the  said  G.  H.  W.  then  and  there  instantly  died. 
And  that  she  the  said  H.  N.,  at  the  time  of  the  committing  of 
the  felony  and  murder  aforesaid,  in  manner  and  form  aforesaid, 
feloniously,  wilfully,  and  other  malice  aforethought,  was  present 
aiding,  abetting,  and  counselling  the  said  J.  W.,  the  felony  and 
murder  aforesaid  to  do  and  commit ;  and  so  the  inquest  afore- 
said, upon  their  oaths  and  affirmation  aforesaid,  do  say,  that 
the  said  J.  W.and  the  said  H.  IST.,  the  said  G.  11.  W.,  in  manner 
and  form  aforesaid,  feloniously,  wilfully,  and  of  their  malice 
aforethought,  did  kill  and  murder,  contrary,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 

(128)  Secoyid  county  by  choking  and  beating.     Against  two — one  as 
principal  in  first  degree^  the  other  in  second  degree. 

And  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  the  said  J.  W.,  and  the  said 
H.  N.,  not  having  the  fear  of  God  before  their  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  on  the  said 
tenth  day  of  April,  in  the  year  one  thousand  eight  hundred  and 
twenty-five,  at  the  county  aforesaid,  and  within  the  jurisdiction 
of  this  court,  with  force  and  arms,  in  and  upon  the  said  G.  H. 
W.,  in  the  peace  of  God  and  of  the  commonwealth  then  and 
there  being,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  make  an  assault ;  and  that  he,  the  said  J.  W.,  a 
certain  muslin  handkerchief  of  the  value  of  twelve  cents,  about 
the  neck  of  him  the  said  G.  H.  W.,  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  fix,  tie,  and  fasten, 
and  that  the  said  J.  W.  with  the  muslin  handkerchief  aforesaid, 
the  neck  of  him  the  said  G.  IL  W.,  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  violently  squeeze 
94 


HOMICIDE.  (129) 

and  press  ;  and  that  the  said  J.  W.,  Avith  a  certain  large  stick 
of  the  value  of  one  cent,  which  he  the  said  J.  W.,  then  and 
therein  his  right  hand  had  and  held,  him  the  said  G.  H.W.,inand 
upon  the  right  side  of  the  head  of  him  the  said  G.  H.  W.,  then 
and  there  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  strike  and  beat,  then  and  there  giving  to  the  said  G.  II.  W., 
by  then  and  there  so  striking  and  beating  him  the  said  G.  II. 
W.  with  the  stick  aforesaid  in  and  upon  the  right  side  of  the 
head  of  the  said  G.  II.  W.,  one  mortal  bruise  of  the  length  of 
two  inches,  and  of  the  breadth  of  one  inch  ;  of  which  said  vio- 
lent squeezing  and  pressing  of  the  neck  of  him  the  said  G.  II. 
W.,  as  well  as  of  the  said  strikino;  and  beating;  of  him  the  said 
G.  H.  W.,  in  and  Ujjon  the  right  side  of  the  head  of  him  the 
said  G.  H.  W.,  with  the  stick  aforesaid,  he  the  said  G.  II.  W. 
then  and  there  instantly  died;  and  that  she  the  said  II.  N.,  at 
the  time  of  the  committing  of  the  felony  and  murder  last  afore- 
said, in  manner  and  form  aforesaid,  feloniously,  wilfully,  and  of 
her  malice  aforethought,  was  present  aiding,  abetting,  and  coun- 
selling the  said  J.  W.  the  felony  and  murder  last  aforesaid  to 
do  and  commit;  and  so  the  inquest  aforesaid,  upon  their  oaths 
and  affirmations  aforesaid,  do  say,  that  the  said  J.  W.  and  the 
said  H.  N.,  the  said  G.  I].  W.,  in  manner  and  form  last  afore- 
said, feloniously,  wilfully,  and  of  their  malice  aforethought,  did 
kill  and  murder,  contrary,  etc.    {Conclude  as  in  book  1,  chapter  3.) 

(129)  Murder.     By  poisoning  with  arsenic.{t) 

That  R.  S.,  late,  etc.,  laborer,  and  A.  S.,  etc.,  not  having  the 
fear  of  God  before  their  eyes,  but  being  moved  and  seduced  by 
the  instigations  of  the  devil,  wickedly  contriving  and  intending 
one  E.  S.  with  poison,  wilfully,  feloniously,  and  of  their  malice 
aforethought  to  kill  and  murder,  on, etc.,  with  force  and  arms, 
at  the  parish  aforesaid,  in  the  county  aforesaid,  feloniously,  wil- 
fully, and  of  their  malice  aforethought,  a  large  quantity  of  a 

(0  R.  V.  Sandys,  1  C.  &  M.  345.  A  verdict  of  guilty  was  supported  on  this 
form,  it  beinjj  held  that  the  allegation  "and  of  the  said  mortal  sickness  died," 
was  good  witliout  stating  that  the  deceased  died  of  the  poisoning.  When  one 
kind  of  poisoning  is  averred  and  another  proved,  the  variance  is  not  fatal.  2  Hale 
P.  C.  485 ;  E.  V.  Tye,  R.  &  R.  345;  R.  v.  Culkin,  5  C.  &  P.  121 ;  R.  v.  Waters, 
7  C.  &  P.  250;  R.  v.  Groundsell,  Ibid.  7^8;  R.  v.  Martin,  5  C.  &  P.  128.  See 
R.  V.  Clark,  2  B.  &  B.  473;  Carter  u.  State,  2  Carter,  Ind.  617;  State  v.  Vawter, 
7  Blackf.  592. 

95 


(129a)  OFFENCES   AGAINST   THE   PERSON. 

certain  deadly  poison  called  white  arsenic,  did  give  and  admin- 
ister  unto  the  said  E.  S.  with  intent  that  she  should  take  and 
swallow  down  the  same  into  her  body  (they  then  and  there  well 
knowing  the  said  white  arsenic  to  be  a  deadly  poison),  and  the 
said  white  arsenic  so  given  and  administered  unto  her  by  the 
said  R.  S.  and  A.  S.,  the  said  E.  S.  did  then  and  there  take  and 
swallow  down  into  her  body  ;  by  reason  and  by  means  of  which 
said  taking;  and  swallowing  down  the  said  white  arsenic  into 
her  body  as  aforesaid,  the  said  E.  S.  became  and  was  mortally 
sick  and  distempered  in  her  body,  of  which  said  mortal  sickness 
and  distemper  the  said  E.  S.  from,  etc.,  until,  etc.,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  did  languish  and  languishing 
did  live,  on  which  said,  etc.,  at,  etc.,  the  said  E,  S.  of  the  said 
mortal  sickness  died;  and  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say  that  the  said  R..  S.  and  A.  S.,  the  said 
E.  S.  in  manner  and  form  aforesaid,  feloniously,  wilfully,  and  of 
their  malice  aforethought  did  kill  and  murder,  etc. 

(129rt)  Another  form. 

That  A.  C.  L.,  late  of  said  county,  yeoman,  not  having  the 
fear  of  God  before  his  eyes,  but  being  moved  and  seduced  by 
the  instigations  of  the  devil,  and  of  his  malice  aforethought, 
wickedly  contriving  and  intending  a  certain  M.  L.  with  poison, 
wilfully,  feloniously,  and  of  his  malice  aforethought,  to  kill  and 
murder,  on  the  thirty-first  day  of  May,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventy-six,  with  force  and  arms, 
at  the  county  aforesaid,  and  within  the  jurisdiction  of  this  court, 
did  knowingly,  wilfully  and  feloniously,  and  of  his  malice 
aforethought,  put,  mix,  and  mingle  certain  deadly  poison — to 
wit,  white  arsenic — in  certain  coffee  which  at  the  time  aforesaid 
had  been  prepared  for  the  use  of  the  said  M.  L.,  he,  the  said 
A.  C.  L.,  then  and  there,  well  knowing  that  the  said  coffee  with 
which  he,  the  said  A.  C.  L.,  did  so  mix  and  mingle  the  deadly 
poison  aforesaid,  was  then  and  there  prepared  for  the  use  of  the 
said  M.  L.  with  the  intent  to  be  then  and  there  administered  to 
him  for  bis  drinking  the  same,  and  the  said  coffee  with  which 
the  said  poison  was  so  mixed,  as  aforesaid,  afterwards,  to  wit, 
on  the  said  Slst  day  of  May,  in  the  year  last  aforesaid,  was 
delivered  to  the  said  M.  L.  to  be  then  and  there  drank  by  him, 
96 


HOMICIDE.  (130) 

and  the  said  M.  L.  not  knowing  the  said  poison  to  have  been 
mixed  with  the  said  coffee,  did  afterwards,  to  wit,  on  the  Slst 
day  of  May,  in  the  year  last  aforesaid,  at  the  county  aforesaid, 
there  drink  and  swallow  down  into  his  body  a  large  quantity  of 
said  poison,  so  mixed  as  aforesaid  with  the  said  coffee,  and  the 
said  M.  L.  of  the  poison  aforesaid,  and  by  the  operation  thereof, 
on  the  said  31st  day  of  May,  in  the  year  last  aforesaid,  in  the 
county  aforesaid,  became  sick  and  greatly  distempered  in  his 
bod}',  of  which  said  sickness  and  distemper  of  body,  occasioned 
by  the  taking,  drinking  and  swallowing  down  in  the  body  of 
the  said  M.  L.  of  the  poison  aforesaid,  so  mixed  and  mingled  in 
the  said  coffee  as  aforesaid,  he,  the  said  M.  L.,  from  the  said  31st 
day  of  May,  in  the  year  last  aforesaid,  on  which  he  had  so  drunk 
and  swallowed  down  the  same  as  aforesaid,  until  the  1st  day  of 
June,  in  the  year  last  aforesaid,  in  the  county  aforesaid,  did 
languish,  and  languishing  did  live,  on  which  said  1st  day  of 
June,  in  the  year  last  aforesaid,  at  the  county  aforesaid,  he,  the 
said  M.  L.,  of  the  poison  aforesaid,  so  taken,  drank,  and  swallowed 
down  as  aforesaid,  and  of  the  said  sickness  and  distemper  thereby 
occasioned,  did  die.  And  so  the  inquest  aforesaid,  upon  their 
oaths  and  affirmations  respectively,  as  aforesaid,  do  say,  that  the 
said  A.  C.  L.,  him,  the  said  M.  L.,  in  the  manner  and  by  the 
means  aforesaid,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  kill  and  murder,  contrary  to  the  form 
of  the  act  of  the  general  assembly  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  Commonwealth 
of  Pennsylvania. 

(Signed)  John  C.  Merrill, 

District  Attorney.(M) 

(130)  Murder  by  2^oisoning.     First  count,  with  arsenic  in  chicken 

so2ip.{v) 

That  L.  C,  late  of  the  county  aforesaid,  widow,  otherwise 
called  L.  E.  M.,  late  of  the  county  aforesaid,  widow,  and  L.  A. 
M.,  late  of  the  county  aforesaid,  yeoman,  otherwise  called  C.  A., 

(m)  This  was  the  indictment  in  Com.  v.  Laros,  84  Penn.  St.  200.  See  Wh. 
Cr.  L.  8th  ed.  §§  59,  61,  65,  121,  392. 

(v)  Com.  V.  Mina,  Court  of  O.  &  T.  of  Bucks  County,  1831  (pamph.).  The 
defendant  Mina  was  convicted  and  executed. 

VOL.  I. — 7  97 


(130)  OFFENCES  AGAINST  THE  PERSON. 

not  having  the  fear  of  God  before  their  eyes,  but  being  moved 
and  seduced  by  the  instigation  of  the  devil,  and  of  their  malice 
aforethought  contriving  and  intending  a  certain  W.  C.  to  de- 
prive of  his  life,  and  him  the  said  W.  C,  feloniously  to  kill  and 
murder,  on,  etc.  (date),  with  force  and  arms  at  the  county  afore- 
said, and  within  the  jurisdiction  of  this  court,  did  knowingly, 
wilfully,  feloniously,  and  of  their  malice  aforethought,  mix  and 
mingle  certain  deadly  poison,  called  arsenic,  in  certain  chicken 
soup,  which  had  been,  at  divers  days  and  times,  during  the 
time  aforesaid,  prepared  for  the  use  of  the  said  W.  C,  to  be 
drunk  by  him  the  said  W.  C.  (they  the  said  L.  C.  and  the  said 
L.  M  ,  then  and  there  well  knowing  that  the  said  chicken  soup 
with  which  they,  the  said  L.  C.  and  the  said  L.  M.,  did  so  mix 
and  mingle  the  said  deadly  poison  as  aforesaid,  was  then  and 
there  prepared  for  the  use  of  the  said  W.  C,  with  intent  to  be 
then  and  there  administered  to  him  for  his  drinking  the 
same),(MJ)  and  the  said  chicken  soup  with  which  the  said  deadly 
poison  was  so  mixed  as  aforesaid,  afterwards,  to  wit,  on,  etc., 
at  the  count}^  and  within  the  jurisdiction  aforesaid,  was  deliv- 
ered to  the  said  W.  C,  to  be  then  and  there  drunk  by  him  the 
said  W.  C,  and  he  the  said  W.  C.  (not  knowing  the  said  poison 
to  have  been  mixed  with  the  said  chicken  soup)  did  afterwards, 
to  wit,  on,  etc.,  there  drink  and  swallow  down  into  his  body 
several  quantities  of  the  said  deadly  poison  so  mixed  as  afore- 
said with  the  said  chicken  soup,  and  the  said  "VV.  C.  of  the 
poison  aforesaid  and  by  the  operation  thereof  then  and  there  be- 
came sick  and  greatly  distempered  in  his  body,  of  which  said  sick- 
ness and  distemper  of  body,  occasioned  by  the  said  drinking,  tak- 
ing, and  swallowing  down  into  the  body  of  the  said  W.  C,  of  the 
deadly  poison  aforesaid,  so  mixed  and  mingled  in  the  said  chicken 
soup  as  aforesaid,  he  the  said  W.  C.  from  the  said  several  days 
and  times  on  which  he  has  so  taken,  drunk,  and  swallowed 
down  the  same  as  aforesaid,  until  the  said  twenty-third  day 
of  June,  in  the  year  last  aforesaid,  at  the  county  aforesaid, 
and  within  the  jurisdiction    aforesaid,  did  languish,  and  lan- 

(?())  The  allegation  of  scienter  would  be  bettor  given  as  follows  :  "he  the  said 
(defendant)  well  knowing  the  said  arsenic  to  be  a  deadly  poison."  See  form 
133.  That  a  scienter  may  be  inferred  from  other  allegations,  see  Com.  v.  Her- 
sey,  2  Allen,  173;  Com.  v.  Earlc,  1  Wiiart.  K,.  525.  That  a  scienter  in  some 
shape  is  in  such  cases  essential,  see  State  v.  Yarborough,  77  N.  C.  524  ;  Fairlee 
V.  People,  11  111.  1. 
98 


HOMICIDE.  (1^31) 

guishing  did  live,  on  which  said  twentj'-third  day  of  June,  in 
the  year  last  aforesaid,  at  the  county  and  within  the  jurisdiction 
aforesaid,  he,  the  said  W.  C,  of  the  poison  aforesaid,  so  taken, 
drunk,  and  swallowed  down  as  aforesaid,  and  of  the  said  sick- 
ness and  distemper  occasioned  thereby,  did  die.(a:)  And  so  the 
inquest  aforesaid,  upon  their  oaths  and  solemn  affirmations 
aforesaid,  do  say,  that  the  said  L.  C,  and  the  said  L.  M.,  him, 
the  said  W.  C,  then  and  there  in  the  manner  and  by  the  means 
aforesaid,  feloniously,  wilfully,  and  of  their  malice  aforethought, 
did  kill  and  murder.     {Conclude  as  in  hook  1,  chapter  3.) 

(131)   Second   count.      Against  one  defendant  as  'princiyal  in  the 
first  and  the  other  as  'principal  in  the  second  d.egree. 

And  the  inquest  aforesaid,  inquiring  as  aforesaid,  upon  their 
oaths  and  solemn  affirmations  aforesaid,  do  further  present,  that 
the  said  L.  C,  otherwise  called  L.  M.,  not  having  the  fear  of 
God  before  her  eyes,  but  being  moved  and  seduced  by  the  insti- 
gation of  the  devil,  and  of  her  malice  aforethought,  wickedly 
contriving  and  intending  the  said  W.  C.  to  deprive  of  his  life, 
and  the  said  W.  C.  feloniously  to  kill  and  murder,  on,  etc.  (date), 
with  force  and  arms  at  the  county  aforesaid,  and  within  the 
jurisdiction  of  this  court,  did  feloniousl3',  wilfully,  and  of  her 
malice  aforethought,  mix  and  mingle  certain  deadly  poison, 
called  arsenic,  in  certain  chicken  soup,  which  had  been  at  divers 
days  and  times,  during  the  time  aforesaid,  prepared  for  the  use 
of  the  said  W.  C.,to  be  drunk  by  him,  the  said  AV.  C.  (she,  the  said 
L.  C,  then  and  there  well  knowing  that  the  said  chicken  soup 
with  which  she,  the  said  L.  C,  did  so  mix  and  mingle  the  said 
deadly  poison  as  aforesaid,  was  then  and  there  prepared  for  the 
use  of  the  said  W.  C,  with  intent  to  be  then  and  there  adminis- 
tered to  him  for  his  drinking  the  same),  and  the  said  chicken 
soup  with  which  the  said  deadly  poison  was  so  mixed  as  afore- 
said, afterwards,  to  wit,  on,  etc,  one  thousand  eight  hundred 
and  thirty-one,  and  on  the  said  other  days  and  times  last  men- 
tioned, at  the  county  and  within  the  jurisdiction  aforesaid,  was 
delivered  to  the  said  W.  C,  to  be  then  and  there  drunk  by  him, 
the  said  W.  C,  and  he  the  said  W.  C.  (not  knowing  the  said 

(x)  As  to  causal  relation  in  cases  of  poisoning,  see  Wh.  Cr.  L.  8th  ed.  §  53G, 
and  notes. 

99 


(133)  OFFENCES    AGAINST    THE    PERSON. 

poison  to  Lave  been  mixed  with  the  said  chicken  soup)  did  after- 
wards, to  wit,  on,  etc.,  there  drink  and  swallow  down  into  his 
bod}-  several  quantities  of  the  said  deadly  poison  so  mixed  as 
aforesaid  with  the  said  chicken  soup,  and  the  said  "VV.  C,  of  the 
poison  aforesaid,  and  by  the  operation  thereof,  then  and  there 
became  sick  and  greatly  distempered  in  his  body,  of  which  said 
sickness  and  distemper  of  body,  occasioned  by  the  said  drink- 
ing, taking,  and  swallowing  down  into  the  body  of  the  said  W. 
C.  of  the  deadly  poison  aforesaid,  so  mixed  and  mingled  in  the 
said  chicken  soup  as  aforesaid,  he,  the  said  W.  C.,from  the  said 
several  days  and  times,  on  which  he  had  so  taken,  drunk,  and 
swallowed  down  the  said  deadly  poison  as  aforesaid,  until  the 
said  twenty-third  day  of  June,  in  the  year  last  aforesaid,  at  the 
county  aforesaid,  and  within  the  jurisdiction  aforesaid,  did  lan- 
guish, and  languishing  did  live  ;  on  which  said  twenty-third 
day  of  June,  in  the  year  last  aforesaid,  at  the  county  aforesaid, 
and  within  the  jurisdiction  aforesaid,  he  the  said  W.  C,  of  the 
poison  aforesaid  so  taken,  drunk,  and  swallowed  down  as  afore- 
said, and  of  the  said  sickness  and  distemper  occasioned  thereby, 
did  die.  And  that  the  said  L.  M.,  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  was  present,  aiding 
and  abetting  the  said  L.  C,  the  felony  and  murder  aforesaid, 
in  manner  and  form  last  aforesaid,  to  do  and  commit.  And 
80  the  inquest  aforesaid,  upon  their  oaths  and  solemn  affirma- 
tions aforesaid,  do  say,  that  the  said  L.  C.  and  the  said  L.  M., 
him  the  said  W.  C.  then  and  there,  in  the  manner  and  form  last 
aforesaid,  feloniously,  wilfully,  and  of  their  malice  aforethought, 
did  kill  and  murder.     {Conclude  as  in  book  1,  chapter  3.) 

(182)   Third  count.     Against   one   as  'principal  and  the  other  as 
accessary  before  the  fact. 

(Omitted  in  this  edition.) 

(138)  By  placing  jmson  so  as  to  be  mistaken  for  medicine.{y) 

That  C.  D.,  of  said  B.,  laborer,  feloniously,  and  of  his  malice 
aforethought,  devising  and  intending  one  E.  F.  to  poison,  kill, 
and  murder,  on  the         day  of         now  last  past,  with  force  and 

(?/)  Cro.  C.  A.  297-9  ;  2  Stark.  C.  P.  369  ;  Chit.  C.  L.  774  ;  Davis's  Free.  183. 

100 


HOMICIDE.  (133) 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  a  certain  quantity 
of  arsenic,  to  wit,  two  drachms  of  arsenic,  being  a  deadly  poi- 
son, feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
put,  infuse,  mix,  and  mingle  in  and  together  with  water,  he 
the  said  C  D.  then  and  there  well  knowing  the  said  arsenic  to 
be  a  deadly  poison ;  and  that  the  said  0.  D.  the  said  arsenic,  so 
as  aforesaid  put,  infused  in,  and  mixed  and  mingled  in  and  to- 
gether with  water,  into  a  certain  glass  phial,  did  put  and  pour ; 
and  the  said  glass  phial,  with  the  said  arsenic  put,  infused  in, 
and  mixed  and  mingled  in  and  together  with  the  water  as  afore- 
said contained  therein,  then  and  there,  to  wit,  on  the  day 
of  in  the  year  aforesaid,  with  force  and  arms,  at  B.  afore- 
said, feloniously,  wilfully,  and  of  his  malice  aforethought,  in  the 
lodging  room  of  the  said  E.  F.  did  put  and  place,  in  the  place 
and  stead  of  a  certain  salutary  medicine  then  lately  before  pre- 
scribed and  made  up  for  the  said  E.  F.,  and  to  be  taken  by  him 
the  said  E.  F.,  he  the  said  C.  D.  then  and  there  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  intending  that  the  said 
E.  F.  should  drink  and  swallow  down  into  his  body  the  said 
arsenic,  put,  infused,  mixed,  and  mingled  in  and  together  with 
water  as  aforesaid,  contained  in  the  said  glass  phial,  by  mistak- 
ing the  same  as  and  for  the  said  salutary  medicine,  so  prescribed 
and  made  up  for  the  said  E.  F.,  and  to  be  by  him  the  said  E.  F. 
taken  as  aforesaid.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  E.  F.,  not  knowing 
the  said  arsenic,  put,  infused  in,  and  mixed  together  with  water 
as  aforesaid,  contained  in  the  said  glass  phial,  so  put  and  placed 
by  the  said  C.  D.,  in  the  lodging  room  of  the  said  E.  F.,  in  the 
place  and  stead  of  the  said  salutary  medicine,  then  lately  be- 
fore prescribed  and  made  up  for  the  said  E.  F.,  to  be  taken  by 
him  the  said  E.  F.,  in  manner  aforesaid,  to  be  a  deadly  poison, 
but  believing  the  same  to  be  the  true  and  real  medicine,  then 
lately  before  prescribed  and  made  up  for,  and  to  be  taken  by 
him  the  said  E.  F.,  afterwards,  to  wit,  on  the  same  day  of 
in  the  year  aforesaid,  at  B.  aforesaid,  the  said  arsenic,  so  as 
aforesaid  put,  infused  in,  and  mixed  together  with  water,  by  the 
said  C.  D.  as  aforesaid,  contained  in  the  said  glass  phial,  so  put 
and  placed  by  the  said  C.  D.,  in  the  lodging  room  of  him  the 
said  E.  F.,  in  the  place  and  stead  of  the  said  medicine,  then 

101 


(134)  OFFENCES    AGAINST    THE    PERSON. 

lately  before  prescribed  and  made  up  for  the  said  E.  F.,  he  the 
said  E.  F.  did  take,  drink,  and  swallow  down  into  his  body  : 
by  means  of  which  said  taking,  drinking,  and  swallowing  down 
into  the  body  of  him  the  said  E.  F.  of  the  said  arsenic,  so  as 
aforesaid  put,  infused  in,  and  mixed  together  with  water  by  the 
said  C.  D.  as  aforesaid,  he  the  said  E.  F.  then  and  there  became 
sick  and  distempered  in  his  body ;  of  which  sickness  and  dis- 
temper of  body,  occasioned  by  the  said  taking,  drinking,  and 
swallowing  down  into  the  body  of  him  the  said  E.  F.,  of  the 
said  arsenic,  so  as  aforesaid  put,  infused  in,  and  mixed  to- 
gether with  water  by  the  said  C.  J),  as  aforesaid,  he  the  said  E. 
F.,  on  the  said  day  of         in  the  year  aforesaid,  at  B.  afore- 

said, in  the  county  aforesaid,  died.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D.  him  the 
said  E.  F.,  in  manner  and  form  aforesaid,  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  poison,  kill,  and  murder. 
{Conclude  as  in  book  1,  chapter  3.) 

(184)  Murder  of  a  child  by  poison.{z) 

That  C.  M.,  etc.,  contriving  and  intending  to  kill  and  murder 
one  G.  Al,  etc.,  on  the  thirty-tirst  day  of  March,  in  the  third  year 
of  the  reign  of  her  present  majesty,  upon  the  said  G.  M.,  felo- 
niously, etc.,  did  make  an  assault,  and  that  the  said  C.  M.,  a 
large  quantity,  to  wit,  half  an  ounce  weight  of  a  certain  deadly 
poison  called  laudanum,  feloniously,  etc.,  did  give  and  adminis- 
ter unto  the  said  G.  M.  with  intent  that  he  should  take  and 
swallow  the  same  down  into  his  body  (she  the  said  C.  M.  then 
and  there  well  knowing  the  said  laudanum  to  be  a  deadly  poi- 
son), and  the  said  G.  M.  the  said  laudanum,  so  given  and  ad- 
ministered unto  him  by  the  said  C.  M.  as  aforesaid,  did  take 
and  swallow  down  into  his  body  ;  by  reason  and  by  means  of 
which  said  taking  and  swallowiny;  down  the  said  laudanum 
into  his  body,  as  aforesaid,  the  said  G.  M.  became  and  was  mor- 
tally sick  and  distempered  in  his  body,  of  which  said   mortal 

{z)  R.  V.  Michael,  9  C.  &  P.  356  ;  2  Mood.  C.  C.  120.  The  prisoner  pur- 
chased a  bottle  of  laudanum,  and  directed  the  person  who  had  charge  ofthecliild 
to  fjive  it  a  teaspoonful  every  night.  The  person  did  not  do  so,  but  another 
child  got  hold  of  tlie  poison,  and  gave  it  to  the  deceased,  who  died  of  it.  A  con- 
viction was  sustained  by  the  judges.  AVh.  Cr.  L.  8th  ed.  §§  135,  160,  207,  246, 
345,  522. 

102 


HOMICIDE.  (13o) 

sickness  and  distemper  the  said  G-.  M.,  from,  etc.,  till,  etc.,  did 
languish,  and  etc.,  died.     {Conclude  as  in  book  1,  chapter  Z.) 

(135)  By  mixing  white  arsenic  with  wine  and  sending  it  to 
deceased^  etc.{a) 

That  A.  E.,  late  of,  etc.,  of  his  malice  aforethought,  contriving 
and  intending  one  C.  D.,  witli  poison,  feloniously  to  kill  and 
murder,  on  with  force  and  arms,  at  a  large  quantity  of 
white  arsenic,  being  a  deadly  poison,  with  a  certain  quantity  of 
wine,  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
mix  and  mingle  :  he  the  said  A.  B.  then  and  there  well  knowing 
the  said  white  arsenic  to  be  a  deadly  poison ;  and  that  the  said 
A.  B.  afterwards,  to  wit,  on  the  day  of  at  aforesaid, 
the  poison  aforesaid,  so  as  aforesaid  mixed  and  mingled  with  the 
wine  aforesaid,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  send  to  her  the  said  C.  D.  to  take,  drink,  and  swal- 
low down;  and  that  the  said  C.  D.,  not  knowing  the  poison 
aforesaid  in  the  wine  aforesaid  to  have  been  mixed  and  mingled 
as   aforesaid,  afterwards,  to  wit,  on  at  aforesaid,  the 

said  poison,  so  as  aforesaid  mixed  and  mingled,  by  the  per- 
suasion and  procurement  of  the  said  A.  B.,  did  take,  drink,  and 
swallow  down  ;  and  thereupon  the  said  C.  D.,  by  the  poison 
aforesaid,  so  mixed  and  mingled  as  aforesaid  by  the  said  A.  B., 
and  so  taken,  drank,  and  swallowed  down  as  aforesaid,  be- 
came then  and  there  sick  and  distempered  in  her  body,  and  the 
said  C.  D.  of  the  poison  aforesaid,  and  of  the  sickness  and  dis- 
temper occasioned  thereby,  from  the  said  day  of  until  the 
day  of  at  aforesaid,  in  the  county  aforesaid,  did  lan- 
guish, and  languishing  did  live  ;  on  which  said  day  of 
she  the  said  C.  D.,  at  aforesaid,  in  the  county  aforesaid,  of 
the  poison  aforesaid,  and  of  the  sickness  and  distemper  thereby 
occasioned  as  aforesaid,  died.  And  so  the  jurors  aforesaid,  u|>on 
their  oath  aforesaid,  do  say,  that  the  said  A.  B.  her  the  said  C. 
D.,  in  manner  and  form  and  by  the  means  aforesaid,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
kill  and  murder.     {Conclude  as  in  hook  1,  chapter  3.) 

(a)  3  Chit.  C.  L.  77G  ;  Davis's  Precedents,  185. 

103 


(136)  OFFENCES    AGAINST    THE   PERSON. 

(136)  3fiirder  bj/ poisoning.     First  county  mixing  white  arsenic  in 

chocolate. {b) 

That  J.  E.,  late  of  Lycoming  County  aforesaid,  laborer,  not 
having  the  fear  of  God  before  his  eyes,  but  being  moved  and 
seduced  by  the  instigations  of  the  devil,  and  of  his  malice  afore- 
thought, wickedly  contriving  and  intending  a  certain  C.  E.  with 
poison,  wilfully,  feloniously,  and  of  his  malice  aforethought,  to 
kill  and  murder,  on,  etc.,  with  force  and  arms,  at  Lycoming 
County  aforesaid,  did  knowingly,  wilfully,  and  feloniously  and 
of  his  malice  aforethought,  put,  mix,  and  mingle  certain  deadly 
poison,  to  wit,  white  arsenic,  in  certain  chocolate  which  had 
been  at  divers  days  and  times  during  the  time  aforesaid,  pre- 
pared for  the  use  of  the  said  C.  E.,  to  be  drunk  by  her  the  said 
C.  E. ;  he  the  said  J.  E.  then  and  there  w^ell  knowing  that  the 
said  chocolate,  with  which  he  the  said  J.  E.  did  so  mix  and  min- 
gle the  deadly  poison  as  aforesaid,  was  then  and  there  prepared 
for  the  use  of  the  said  C.  E.,  with  intent  to  be  then  and  there 
administered  to  her  for  her  drinking  the  same;  and  the  said 
chocolate  with  which  the  said  poison  was  so  mixed  as  afore- 
said, afterwards,  to  wit,  on  the  said  fourteenth  da}''  of  October, 
in  the  year  last  aforesaid,  and  on  the  said  other  days  and  times, 
at  L.  aforesaid,  was  delivered  (by  the  said  J.  E.)  to  the  said  C. 
E.,  to  be  then  and  there  drunk  by  her;  and  the  said  C.  E., 
not  knowing  the  said  poison  to  have  been  mixed  with  the 
said  chocolate,  did  afterwards,  to  wit,  on,  etc.,  there  drink  and 
swallow  down  into  her  body,  several  quantities  of  the  said  poison 
so  mixed  as  aforesaid  with  the  said  chocolate ;  and  the  said  C. 
E.,  of  the  poison  aforesaid,  and  by  the  operation  thereof,  on,  etc., 
at  Lycoming  County  aforesaid,  became  sick  and  greatly  dis- 
tenipered  in  her  body  ;  of  which  said  sickness  and  distemper  of 
body,  occasioned  by  the  drinking,  taking,  and  swallowing  down 
into  the  body  of  the  said  C.  E,  of  the  poison  aforesaid,  so  mixed 
and  mingled  in  the  said  chocolate  as  aft)resaid,  she  the  said  C. 
E.,  from  the  said  several  days  and  times  on  which  she  had  so 

(J)  Com.  V.  Earle,  1  Whart.  525.  Under  this  indictment  the  prisoner  was 
executed.  The  omission  of  a  direct  averment  of  the  scienter  was  held  by 
the  supreme  court  not  to  be  ground  for  a  special  allocatur.  At  the  same  time 
it  is  more  prudent  that  such  averment  should  be  speciliedly  made.  See  notes  to 
forms  97,  130. 

104 


HOMICIDE.  (137) 

drunk  and  swallowed  down  the  same  as  aforesaid,  until  the  six- 
teenth day  of  October,  in  the  year  last  aforesaid,  at  Lycoming 
County  aforesaid,  did  languish,  and  languishing  did  live  ;  on 
which  said  sixteenth  day  of  October,  in  the  year  last  aforesaid, 
at  Lycoming  County  aforesaid,  she  the  said  C.  E.,  of  the  poison 
aforesaid,  so  taken,  drunk,  and  swallowed  down  as  aforesaid, 
and  of  the  said  sickness  and  distemper  thereby  occasioned,  did 
die. 

And  so  the  inquest  aforesaid,  upon  their  oaths  and  affirma- 
tions respectively  as  aforesaid,  do  say,  that  the  said  J.  E.,  her 
the  said  C.  E.,  in  the  manner  and  by  the  means  aforesaid,  then 
and  there  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  kill  and  murder.     {Conclude  as  in  hook  1,  chapter  3.) 

(137)  Second  count.     Mixing  arsenic  in  tea. 

And  that  the  said  J.  E.,  on,  etc.,  at,  etc.,  with  force  and  arms, 
did  knowingl}',  wnlfully,  feloniously,  and  of  his  malice  afore- 
thought, place,  mix,  and  mingle  certain  deadly  poison,  to  wit, 
white  arsenic,  in  certain  tea  which  had  been  at  divers  days  and 
times  during  the  time  aforesaid  prepared  for  the  use  of  the  said 
C.  E.,  to  be  drunk  by  her  the  said  C.  E. ;  he  the  said  J.  E.  then 
and  there  well  knowing  that  the  said  tea,  with  which  the  said 
poison  was  mixed  as  aforesaid,  was  then  and  there  prepared  for 
the  use  of  the  said  C.  E.,  with  intent  to  be  then  and  there 
administered  to  her  for  her  drinking  the  same.  And  the  said 
tea  with  which  the  said  poison  was  so  mixed  as  aforesaid,  after- 
wards, to  wit,  on,  etc.,  at,  etc.,  was  delivered  to  the  said  C.  E., 
to  be  then  and  there  drunk  by  her;  and  the  said  C.  E.,  not 
knowing  the  said  poison  to  have  been  mixed  with  the  said  tea, 
afterwards,  to  wit,  on  the  said  fourteenth  day  of  October,  in 
the  year  last  aforesaid,  and  on  the  said  divers  other  days  and 
times,  there  did  drink  and  swallow  down  into  her  body  several 
quantities  of  the  said  poison  so  mixed  as  aforesaid  with  the  said 
tea;  and  the  said  C  E.,  of  the  poison  aforesaid,  and  by  the 
operation  thereof,  on  the  said  fourteenth  day  of  October,  in  the 
year  last  aforesaid,  at  Lycoming  County  aforesaid,  became  sick 
and  greatly  distempered  in  her  body  ;  of  which  said  sickness 
and  distemper,  occasioned  by  the  drinking,  taking,  and  swallow- 
ing down  into  the  body  of  the  said  C.  E.  of  the  poison  aforesaid, 

105 


(138a)  OFFENCES    AGAINST    THE    PERSON. 

SO  mixed  and  mingled  in  the  said  tea  as  aforesaid,  she  the  said 
C  E.,  from  tlie  said  several  days  and  times  on  which  she  had  so 
drunk  and  swallowed  down  the  same  as  aforesaid,  until  the  said 
sixteenth  day  of  October,  in  the  year  last  aforesaid,  at  Lycoming 
County  aforesaid,  did  languish,  and  languishing  did  live;  on 
vehich  said  sixteenth  day  of  October,  in  the  year  last  aforesaid, 
at  Lycoming  County  aforesaid,  she  the  said  C.  E.,  of  the  poison 
aforesaid,  so  taken,  drunk,  and  swallowed  down  as  aforesaid, 
and  of  the  sickness  and  distemper  thereby  occasioned,  did  die. 

And  so  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
respectively  as  aforesaid,  do  say,  that  the  said  J.  E.,  her  the  said 
C.  E.,  in  the  manner  and  by  the  means  last  aforesaid,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
kill  and  murder,  contrar}^,  etc.   {Conclude  as  in  hook  1,  chapter  3.) 

(138)  Murder  hy  giving  to  the  deceased  poison,  and  thereby  aiding 
her  in  suicide.{c) 

That  B.  A.,  on,  etc.,  at,  etc.,  upon  E.  C,  "  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  make  an  assault,  and  felo- 
niously, wiU'ull}",  and  of  his  malice  aforethought,  did  give  and 
administer  to  her  two  ounces  weight  of  a  deadly  poison  called 
laudanum,  with  intent  that  she  should  take  and  swallow  the 
same  down  into  her  body  (he  knownng  the  same  to  be  a  deadly 
poison) ;  and  that  the  said  E.  C.  the  said  laudanum  so  administered 
did  take  and  swallow  down  into  her  body,  and  by  reason  thereof 
became  mortally  sick  and  distempered  in  her  body,  and  of  such 
mortal  sickness  and  distemper  then  and  there  died."  {Conclude 
as  in  book  1,  chapter  3.) 

(138rt)  31urdcr  by  administering  cantharides  ivith  intent  to  ravish, 
under  Indiana  statute.     Second  count. 

The  grand  jurors  aforesaid,  for  the  county  aforesaid,  upon 
their  oatlis  aforesaid,  do  further  charge  and  present,  that  M.  B. 
and  W.  Y.,  at,  etc.,  on,  etc.,  unlawfully,  purposelj',  feloniously, 

(c)  This  was  approved  in  R.  v.  Alison,  8  C.  &  P.  418.  As  has  ah-eady  been 
observed  (s'qrrd,  notes  to  forms  97,  107),  a  party  who  is  present  aiding  in  the 
commission  of  a  suicide  becomes  a  principal  in  the  offence,  and  may  be  indicted 
for  the  murder  of  the  deceased,  though  tlie  courts  differ  as  to  whether  there  can 
be  accessaries  before  the  fact  to  suicide  at  common  law.  Wn.  Cr.  L.  8th  ed. 
§§  428  et  seq. 

106 


HOMICIDE.  (138a) 

and  with  premeditated  malice,  did  kill  and  murder  one  S.  I.,  a 
woman  over  the  age  of  fourteen  years,  in  an  unlawful  attempt, 
forcibly,  feloniously,  and  against  her  will,  to  then  and  there 
ravish  and  have  unlawful  carnal  knowledge  of  her,  the  said  S.  I, 
(the  said  M.  B.  and  W.  Y.,  and  each  of  them,  then  and  there 
having  tlie  present  ability  to  ravish  and  carnally  know  her  the 
said  S.  I.),  by  then  and  there  purposely,  wilfully,  feloniously, 
unlawfully,  and  with  premeditated  malice,  administering  and 
causing  to  be  administered  unto  the  said  S.  I.,  a  large  quantity 
of  a  certain  deadly  poison,  commonly  known  as  and  called 
cantharides,  which  said  cantharides  the  said  M.  B.  and  W.  Y., 
and  each  of  them,  had  unlawfully,  feloniously,  and  with  pre- 
meditated malice,  mixed  and  mingled  with  certain  wine,  unlaw- 
fully, purposely,  wilfull}^  feloniously,  and  with  premeditated 
malice,  to  be  then  and  there,  and  at  the  county  aforesaid,  taken, 
drank,  and  swallowed  down  into  the  body  of  the  said  S.  T. ; 
they,  the  said  M.  B.  and  W.  Y.,  and  each  of  them,  then  and 
there  intending  and  believing  that  the  properties  of  the  said 
cantharides  aforesaid  were  such  that,  when  drank  down  into 
the  throat  and  body  of  the  said  S.  I.,  it  would  create  and  greatly 
excite  and  increase  her  sexual  passions,  and  create  and  excite  in 
her  a  desire,  wliich  she  could  not  control,  to  have  sexual  carnal 
intercourse  with  men,  and  they,  the  said  M.  B.  and  W.  Y,, 
and  each  of  them,  then  and  there  and  at  the  time  and  place 
aforesaid,  believing  such  administration  of  said  cantharides 
would,  and  thereby  purposing  and  unlawfully  intending  that  it 
should  so  excite  and  increase  the  sexual  passions  and  desires  for 
sexual  intercourse  with  men  in  her,  the  said  S.  I.,  that  she  the 
said  S.  L,  by  the  means  and  operations  of  the  said  cantharides 
upon  her  system,  would  so  greatly  desire  to  have  sexual  carnal 
intercourse  with  men,  that  she  could  not  control  her  will,  and 
resist  the  same,  and  that,  by  the  unlawful  means  and  operations 
of  said  cantharides  aforesaid,  so  taken  and  swallowed  down 
into  her  system,  her  the  said  S.  I.'s  will  to  resist  having  sexual 
intercourse  with  them  would  be  then  and  there  and  thereby 
broken  down  and  overcome,  and  they,  the  said  M.  B.  and  W.  Y., 
and  each  of  them,  then  and  there  and  thereby  be  enabled  to 
have  unlawful  sexual  carnal  intercourse  with  her,  the  said  S.  L, 
forcibly  and  against  her  will ;  and  she,  the  said  S.  I.,  not  know- 

107 


(139)  OFFENCES    AGAINST    THE    PERSON. 

ing  the  said  poison  aforesaid  bad  been  mingled  and  mixed 
witb  said  wine  aforesaid,  did  take,  drink,  and  swallow  down 
into  ber  body,  then  and  there  and  at  the  time  and  place  afore- 
said, several  large  quantities  of  said  poison  aforesaid,  the  said 
M.  B.  and  W.  Y.,  and  each  of  them,  then  and  there  well  know- 
ing that  the  said  cantbarides  aforesaid,  so  mixed  and  mingled 
in  said  wine  by  them  as  aforesaid,  was  a  deadly  poison,  and 
they,  the  said  M.  B.  and  W.  Y.,  and  each  of  them,  then  and 
there  knowing  the  said  cantbarides  to  be  a  deadly  poison, 
administered  and  caused  the  same  to  be  administered,  then  and 
there  unto  the  said  S.  L,  a  woman  over  the  age  of  fourteen 
years,  witb  the  unlawful  intent,  then  and  there,  at  the  time  and 
place  aforesaid,  and  by  the  means  and  operations  of  the  poison  as 
aforesaid,  ber,  the  said  S.  I.,  to  unlawfully  ravish  and  carnally 
know  by  force  and  against  her  will,  the  said  M.  B.  and  W.  Y., 
and  each  of  them,  then  and  there  having  the  present  ability  to 
unlawfully  ravish  and  carnally  know  ber,  the  said  S.  I.,  against 
ber  will,  under  and  by  the  means  and  operations  of  the  poison 
aforesaid,  upon  the  system  of  the  said  S.  T.  aforesaid.  And  the 
grand  jurors  aforesaid,  upon  their  oaths  aforesaid,  charge  and 
present,  that  the  said  M.  B.  and  W.  Y.,  her,  the  said  S.  L,  then 
and  there  and  thereby,  at  the  time,  in  the  manner,  and  b\''  the 
means  aforesaid,  and  at  the  place  aforesaid,  feloniously,  wilfully, 
unlawfully,  and  of  premeditated  malice,  did  kill  and  murder, 
etc.,  contrary,  etc.{d) 

(139)  Murder  in  the  first  degree  in  Ohio.    By  obstructing  a  railroad 

track. {e) 

That  A,  B.,  on,  etc.,  unlawfully,  wilfully,  purposely,  and  of 
bis  deliberate  and  premeditated  malice,(/)  in  and  upon  the  track 

(d)  It  was  held  that  this  indictment  was  sufficient  as  charging  a  murder  by  the 
administering  of  poison,  but  not  of  a  murder  in  an  attempt  to  commit  a  rape ; 
the  allegations  in  respect  to  the  attempted  rape  being  treated  as  mere  surplusage. 
It  was  held,  also,  that  the  indictment  sufliciently  shows  that  the  woman  died  of 
the  poison  administered  to  her,  and  that  a  purpose  to  kill  the  woman,  on  the  part 
of  the  defendant,  was  sufficiently  alleged.  Bechtelheimer  v.  State,  54  Ind.  128. 
Wh.  Cr.  L.  8th  ed.  §  610.     For  administering  chloroform  see  infra^  10.56  c. 

(e)  This  was  sustained  in  Ohio  in  State  v.  Brooks,  9  West.  L.  J.  109  ;  War- 
ren's C.  L.  13. 

(/)  Mr.  Warren  advises  to  aver,  at  this  point,  a  purpose  and  intention  to  kill, 
or  to  inflict  a  mortal  wound.  Fonts  v.  State,  8  Ohio,  98  ;  Kain  n.  State,  8  ib. 
306  ;  Hagan  v.  State,  10  Ohio  St.  R.  459;  Loeifner  v.  State,  10  Ohio  St.  R.  599. 

108 


HOMICIDE.  (139) 

of  a  certain  railroad,  theu  and  there  being  in  operation,  and 
known  as  and  called  the  Cleveland  and  Pittsburg  Railroad,  a 
certain  obstruction,  called  and  being  a  plank  of  wood,  of  great 
length,  breadth,  and  thickness,  to  wit,  eight  feet  long,  one  foot 
wide,  and  three  inches  thick,  then  and  there  did  put  and  place, 
by  means  of  which  said  obstruction  then  and  there  so  placed 
and  put  in  and  upon  the  said  Cleveland  and  Pittsburg  Railroad 
by  the  said  A.  B.,  as  aforesaid,  and  by  means  of  the  force  and 
velocity  of  a  certain  locomotive  engine,  called  the  Crab,  then 
and  there  passing  along  and  upon  the  track  of  the  said  Cleve- 
land and  Pittsburg  Railroad,  and  running  against  and  upon 
the  said  obstruction,  so  put  and  placed  by  the  said  A.  B.,  as 
aforesaid,  one  M.  N.,  then  and  there  being  and  passing  along 
the  said  railroad  upon  the  locomotive  aforesaid,  he  the  said  A. 
B.,  with  great  force  and  violence,  thereby  unlawfully,  wilfully, 
purposely,  and  of  his  deliberate  and  premeditated  malice,(5')  did 
then  and  there  precipitate,  cast,  and  throw  from  the  said  loco- 
motive, so  passing  as  aforesaid,  to  and  upon  the  rails,  ties,  and 
other  substances  composing  the  track  of  said  railroad,  thereby 
then  and  there  giving  to  the  said  M.  N.  one  mortal  concussion 
and  jar,  of  which  said  mortal  concussion  and  jar  the  said  M.  !N^. 
then  and  there  instantly  died;  and  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  A.  B.,  him  the  said 
M.  N.,  in  manner  and  form  aforesaid,  feloniously,  unlawfully, 
wilfully,  purposely,  and  of  his  deliberate  and  premeditated 
malice,  did  kill  and  murder.     {Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

That  the  said  A.  B.,  late  of  the  county  aforesaid,  on,  etc.,  at, 
etc.,  unlawfully,  purposely,  wilfully,  and  of  his  deliberate  and 
premeditated  malice,  in  and  upon  the'  track  of  a  certain  rail- 
road then  and  there  being  in  operation,  and  known  as  and 
called  the  Cleveland  and  Pittsburg  Railroad,  a  certain  obstruc- 
tion then  and  there  called  and  being  a  plank  of  wood,  of  great 
length,  breadth,  and  thickness,  to  wit,  eight  feet  long,  one  foot 
wide,  and  three  inches  thick,  then  and  there  did  put  and  place, 

((/)  This  averment  is  necessary  under  the  Ohio  statute.  It  would  be  safer  to 
add,  '"and  with  purpose  and  intent  to  kill  and  destroy,"  etc. 

109 


(140)  OFFENCES    AGAINST    THE    PERSON. 

bj  means  of  which  obstruction,  then  and  there  put  and  placed 
by  the  said  A.  B.,  in  and  upon  the  Cleveland  and  Pittsburg 
Railroad,  and  by  means  of  the  force  and  velocity  of  a  certain 
locomotive  engine  called  the  Crab,  then  and  there  passing  along 
said  railroad,  and  running  against  and  upon  the  said  obstruction 
so  placed  by  the  said  A.  B.  as  aforesaid,  one  M.  IST.,  then  and 
there  being,  and  passing  along  said  railroad,  upon  the  locomotive 
aforesaid,  he  tlie  said  A.  B,,  with  great  force  and  violence,  did 
thereby,  then  and  there,  unlawfully,  wilfully,  purposely,  and  of 
his  deliberate  and  premeditated  malice,  precipitate,  cast,  and 
throw  from  the  said  locomotive,  to  and  upon  the  track  of  the 
railroad  aforesaid,  and  with  the  said  locomotive,  the  body  of  the 
said  M.  N.  did  run  over  and  crush,  thereby  giving  to  the  said 
M.  N.,  in  and  upon  the  body  of  him  the  said  M.  N.,  one  mortal 
crush  and  contusion,  of  which  said  mortal  crush  and  contusion 
the  said  M.  N.  then  and  there  instantly  died;  and  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  A.  B., 
him  the  said  M.  IS^.,  in  the  manner  and  form  aforesaid,  unlaw- 
fully, wilfully,  purposely,  and  of  his  deliberate  and  premeditated 
malice,  did  kill  and  murder.    [Condade  as  in  book  1,  chapter  '6.) 

(140)  Murder  in  the  first  degree  in  Ohio,  by  sending  to  the  deceased 
a  box  cordaining  an  iron  tube,  gunpowder,  bullets,  etc.,  art- 
fully arranged  so  as  to  explode  on  attempting  to  open  it.{h) 

That  A.  B.,  contriving  one  M.  N.  to  deprive  of  his  life,  and 
him,  the  said  M.  Is.,  purposely  and  of  deliberate  and  premedi- 
tated malice  to  kill  and  murder,  on,  etc.,  with  force  and  arms, 
at,  etc.,  a  certain  wooden  box,  then  and  there  containing  an  iron 
tube  closed  at  both  ends,  and  loaded  and  charged  with  gun- 
powder and  ten  leaden  bullets  and  ten  leaden  slugs  (which  said 
box  and  its  contents  were  then  and  there  so  constructed  and 
arranged  that,  whenever  any  person  should  attempt  to  open  the 
said  box,  the  iron  tube  aforesaid,  loaded  and  charged  as  afore- 
said, would  thereby  instantly  be  exploded,  and  as  well  the 
said  box  as  the  said  tube  be  broken  into  pieces,  and  the  frag- 
ments of  the  said  tube,  together  with  the  bullets  and  slugs 
aforesaid,  be  driven  and  shot  forth),  did,  purposely  and  of  delib- 

Qi)  This  indictment  is  given  by  ]Mr.  AVarren  as  having  been  sustained  in 
Ohio.     Warren's  C.  L.  16. 

110 


HOMICIDE.  (140) 

erate  and  premeditated  malice,  send  and  cause  to  be  delivered 
to  the  said  M.  N.,  in  the  city  and  county  aforesaid,  with  intent 
that  he,  the  said  M.  !N^.,  should  receive  the  said  box,  and  should 
attempt  to  open  the  same,  he  the  said   A.  B,,  tlien  and  there 
well  knowing  that  the  said  tube,  loaded  and  charged  as  afore- 
said with  gunpowder,  bullets,  and   slugs,  would  be  exploded 
whenever  any  person  should  attempt  to  open  the  said  box,  and 
that  the  explosion  thereof  would  kill  every  such  person;  and  the 
said  M.  ]Sr.,  not  knowing  the  said  box  and  its  contents  to  have 
been  so  constructed  and  arranged  as  aforesaid,  nor  that  the  said 
box  contained  tlie  said  tube  loaded  and  charged  as  aforesaid, 
or  any  other  deadly  or  hurtful  instrument  or  substance  whatso- 
ever, afterwards,  on  the  day  and  year  aforesaid,  at  the  city  and 
county  aforesaid,  by   the  procurement  of  the  said  A.  B.,  did 
receive  the  said  box,  and  did  then  and  there  attempt  to  open 
the  same,  and  instantly,  upon  the  said  attempt  of  him,  the  said 
M.  N.,  to  open  the  said  box,  on  the  day  and  year  aforesaid,  at 
the  city  and  county  aforesaid,  the  iron  tube  aforesaid,  contained 
within    the  said   box,  closed    at   both    ends,  and    loaded  and 
charged  with  gunpowder,  bullets,  and  slugs,  as  aforesaid,  was 
exploded,  and  thereby  as  well  the  said  tube  as  the  said   box 
was  then  and  there  broken   into  pieces,  and  the  fragments  of 
the  said  tube,  together  with   the  bullets  and  slugs  aforesaid, 
were  then  and  there  driven  and  shot  forth  ;  by  means  whereof 
and   by   force  of  the   explosion   of   the  gunpowder   contained 
within  the  said  tube,  eight  of  the  said  bullets,  and  eight  of  the 
said  slugs,  driven   and  shot  forth   as  aforesaid,  did  then  and 
there  strike  and  penetrate  the  inside  of  the  right  thigh  of  the 
said  M.  K,  immediately  below  the  groin,  then  and  there  giving 
to  him  the  said  M.  IsT.,  in  and  upon  the  inside  of  the  right 
thigh  of  him  the  said  M.  N.,  immediately  below  the  groin,  six- 
teen mortal  wounds,  each  of  the  depth  of  five  inches  and  of  the 
breadth  of  one  inch ;  and,  also,  by  means  whereof,  and  by  force 
of  the  explosion  of  the  gunpowder  aforesaid,  one  fragment  of 
the  said  iron  tube,  driven  and  shot  forth  as  aforesaid,  did  then 
and  there  strike  and  mortally  lacerate  the  abdomen  and  bowels 
of  him  the  said  M.  N.,  for  the  space  of  six  inches  in  length  and 
breadth,  and  four  inches  in  depth  ;  of  which  said  mortal  wounds 
and  contusion  and  laceration,  he,  the  said  M.  N.,  from  the  said 

111 


(140)  OFFENCES    AGAINST    THE    PERSON. 

twenty-sixth  day  of  June,  in  the  year  aforesaid,  until  the 
twenty-seventh  day  of  June  in  the  same  year,  at  the  city  and 
county  aforesaid,  languished, and  languishing  did  live;  on  which 
twenty-seventh  day  of  June,  in  the  year  aforesaid,  at  the  city 
and  county  aforesaid,  he,  the  said  M.  N.,  of  the  mortal  wounds 
and  laceration  aforesaid,  died:  And  so  the  jurors  aforesaid,  on 
their  oaths  aforesaid,  do  say,  that  the  said  A.  B.,  him,  the  said 
M.  'N.^  in  manner  and  form  aforesaid,  at  the  city  and  county 
aforesaid,  purposely,  and  of  deliberate  and  premeditated  malice, 
did  kill  and  murder.     (Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

That  the  said  A.  B.,  contriving  one  M.  ]^.  to  deprive  of  his 
life,  and  him  the  said  M.  !N".  purposely,  and  of  deliberate  and 
premeditated  malice,  to  kill  and  murder,  on,  etc.,  with  force  and 
arms,  at,  etc.,  a  certain  wooden  box,  then  and  there  containing 
an  iron  tube  closed  at  both  ends,  and  loaded  and  charged  with 
gunpowder  and  ten  leaden  bullets  and  ten  leaden  slugs,  and 
which  said  box,  between  said  iron  tube,  so  contained  and  loaded 
and  charged  as  aforesaid  within  said  box,  and  the  sides  of  the 
said  box,  was  then  and  there  also  loaded  and  charged  with  gun- 
powder and  twenty  leaden  bullets  and  twenty  leaden  slugs  (which 
said  box  and  its  contents  were  then  and  there  so  constructed  and 
arranged  that,  whenever  any  person  should  attempt  to  open  the 
same,  the  iron  tube  aforesaid,  loaded  and  charged  as  aforesaid, 
as  well  as  the  gunpowder  aforesaid,  so  placed  as  aforesaid 
between  the  said  iron  tube  and  the  sides  of  the  said  box  would 
thereby  instantly  be  exploded,  and  as  well  the  said  box  as  the 
said  tube  be  broken  into  pieces,  and  the  fragments  of  the  said 
tube,  together  with  the  bullets  and  slugs  aforesaid,  as  well 
those  within  the  said  tube  as  those  between  the  said  tube  and 
the  sides  of  the  said  box,  be  driven  and  shot  forth),  did  pur- 
posely and  of  deliberate  and  premeditated  malice  send  and  cause 
to  be  delivered  to  the  said  M.  N.,  in  the  city  and  county  afore- 
said, with  intent  that  he,  the  said  M.  N.,  should  receive  the 
said  box  and  should  attempt  to  open  the  same;  he,  the  said  A. 
B.,  then  and  there  well  knowing  that  the  said  tube,  loaded  and 
charged  as  aforesaid,  with  gunpowder,  bullets,  and  slugs,  as 
well  as  the  gunpowder  aforesaid,  so  placed  as  aforesaid  between 
112 


HOMICIDE.  (1^) 

the  said  iron  tube  and  the  sides  of  the  said  box,  would  be  ex- 
ploded whenever  any  person  should  attempt  to  open  the  said 
box,  and  that  the  explosion  thereof,  to  wit,  the  iron  tube,  and 
the  gunpowder  between  the  said  iron  tube  and  the  sides  of  the 
said  box,  would  kill  every  such  person;  and  the  said  M.  X.,  not 
knowing  the  said  box  and  its  contents  to  have  been  so  con- 
structed and  arranged  as  aforesaid,  nor  that  the  said  box  con- 
tained the  said  tube,  loaded  and  charged  as  aforesaid,  nor  that 
the  said  box  contained  the  gunpowder,  leaden  bullets,  and  leaden 
slugs  aforesaid,  placed  as  aforesaid  between  the  said  iron  tube 
and  the  sides  of  the  said  box,  or  any  other  deadly  or  hurtful 
instrument  or  substance  whatsoever,  afterwards,  on  the  day  and 
year  aforesaid,  at  the  city  and  county  aforesaid,  by  the  pro- 
curement of  the  said  A.  B.,  did  receive  the  said  box,  and  did 
then  and  there  attempt  to  open  the  same;  and  instantly  upon 
the  said  attempt  of  him  the  said  M.  N.,  to  open  the  said  box,  on 
the  day  and  year  aforesaid,  at  the  city  and  county  aforesaid,  the 
iron  tube  aforesaid,  contained  within  the  said  box,  closed  at 
both  ends,  and  loaded  and  charged  with  gunpowder,  bullets, 
and  slugs,  as  aforesaid,  and  the  gunpowder  aforesaid,  so  con- 
tained as  aforesaid  between  the  said  iron  tube  and  the  sides  of 
the  said  box,  were  thereby  exploded,  and  thereby  as  well  the 
said  tube  as  the  said  box  was  then  and  there  broken  into  pieces, 
and  the  fragments  of  the  said  tube,  together  with  the  bullets 
and  slugs  aforesaid,  as  well  those  within  the  said  tube  as  those 
contained  as  aforesaid  between  the  said  tube  and  the  sides  of 
the  said  box,  were  then  and  there  driven  and  shot  forth  ;  by 
means  whereof,  and  by  force  of  the  exiilosion  of  the  gunpowder 
contained  within  said  tube,  and  by  force  of  the  explosion  of  the 
gunpowder  contained  as  aforesaid,  between  said  tube  and  the 
sides  of  the  said  box,  eight  of  the  said  bullets  and  eight  of  the 
said  slugs,  contained  as  aforesaid  within  said  tube,  and  between 
said  tube  and  the  sides  of  the  said  box,  driven  and  shot 
forth  as  aforesaid,  did  then  and  there  strike  and  penetrate  the 
inside  of  the  right  thigh  of  the  said  M.  N.,  immediately  below 
the  groin,  then  and  there  giving  to  him,  the  said  M.  ^N".,  in  and 
upon  the  inside  of  the  right  thigh  of  him  the  said  M.  N.,  imme- 
diately below  the  groin,  sixteen  mortal  wounds,  each  of  the  depth 
of  five  inches,  and  of  the  breadth  of  one  inch,  and,  also,  by  means 

VOL.  I.— 8  113 


(141)  OFFENCES    AGAINST    THE    PERSON. 

whereof,  and  by  force  of  the  explosion  of  the  gunpowder  afore- 
said, one  fragment  of  the  said  iron  tube,  driven  and  shot  forth  as 
aforesaid,  did  then  and  there  strike,  and  mortally  wound  and 
lacerate  the  abdomen  and  bowels  of  him  the  said  M.  N.,  for  the 
space  of  six  inches  in  length  and  breadth  and  four  inches  in 
depth ;  of  which  said  mortal  wounds  and  laceration,  he  the  said 
M.  N.,  from  the  said  twenty-sixth  day  of  June,  in  the  year 
aforesaid,  until  the  twenty-seventh  day  of  June,  in  the  same 
year,  at  the  city  and  county  aforesaid,  languished,  and  languish- 
ing did  live;  on  which  said  twenty-seventh  day  of  June,  in  the 
year  aforesaid,  at  the  city  and  county  aforesaid,  he  the  said  M. 
N.,  of  the  mortal  wounds  and  laceration  aforesaid,  died:  And  so 
the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say,  that  the 
said  A.  B.,  him  the  said  M.  IST.,  in  manner  and  form  aforesaid,  at 
the  city  and  county  aforesaid,  purposely,  and  of  deliberate  and 
premeditated  malice,  did  kill  and  murder.  {Conclude  as  in  hook 
1,  chapter  3.) 

(141)  Murder  in  the  Jirst  degree  in  Ohio — hy  a  father^  chaining 
and  coyrfining  his  infant  daughter  several  nights  during  cold 
weather  without  clothing  orjire.{i) 

That  A.  B.  feloniously,  unlawfully,  purposely,  maliciously, 
and  of  his  deliberate  and  premeditated  malice,  contriving  and 
intending  one  M.  E".  (she  the  said  M.  IT.  then  and  there  being 
the  infant  daughter  of  him  the  said  A.  B.)  to  kill  and  murder, 
on,  etc.,  and  on  divers  other  days  and  times  between,  etc.,  with 
force  and  arms,  at  the  county  of  iShelby  aforesaid,  in  and  upon 
the  said  M.  N.,  his  infant  daughter  as  aforesaid,  in  the  peace  of 
the  State  of  Ohio  then  and  there  being,  unlawfully,  feloniously, 
purposely ,(J)  and  of  his  deliberate  and  premeditated  malice,  did 
make  divers  assaults;  and  that  the  said  A.  B.  did  then  and 
there  bind  and  fasten  a  certain  iron  chain  around  the  neck  of 

(i)  Mr.  Warren  gives  the  above  as  having  been  sustained  in  Ohio.  Warren's 
C.  L.  23. 

(/)  It  is  essential  that  the  intent  and  purpose  to  kill  should  be  specifically 
averred  in  the  descrijjtion  of  this  crime ;  and  the  failure  to  do  this  is  not  cured  by 
an  averment  of  purpose  as  to  the  assault,  or  in  the  general  conclusion.  Fonts 
V.  State,  8  Ohio  St.  R.  98.     Wh.  Cr.  L.  8th  ed.  §  543. 

It  is  enough,  however,  to  allege  that  the  accused  '■'purposely,  and  of  deliber- 
ate and  premeditated  malice,  assaulted,  cut,  and  stabbed"  the  deceased,  "there- 
bv  then  and  there  pvrpnsely,  and  of  deliberate  and  premeditated  malice,  giving" 
to  the  said  deceased,  "  a  mortal  wound,"  etc.,  Loeffner  v.  State,  10  Ohio  St.  R.  599. 
114 


HOMICIDE.  (1-41) 

her  the  said  M.  N.,  and  with  and  by  means  of  said  chain,  her 
the  said  M.  E",,  then  and  there,  in  a  certain  room,  in  the  dwell- 
ing-house of  him  the  said  A.  B.  there  situate,  feloniously,  unlaw- 
fully, purposely,  maliciously,  and  of  his  deliberate  and  premed- 
itated malice,  did  chain,  confine,  and  imprison ;  and  that  the 
said  A.  B.,  during  the  night  season  of  each  day,  from  the  said, 
etc.,  until  the  said,  etc.,  with  force  and  arms,  at  the  county  of 
Shelby  aforesaid,  did  feloniously,  unlawfully,  purposely,  mali- 
ciously, and  of  his  deliberate  and  premeditated  malice,  with 
the  chain  aforesaid,  confine  and  imprison  her  the  said  M.  'N.,  in 
his  room  aforesaid,  without  fire  and  without  clothing,  or  other 
means  of  protection  from  the  cold,  and  that  during  all  the  said 
time  the  weather  was  cold,  inclement,  freezing  weather;  and 
that  the  said  A.  B.,  from  the  said,  etc,  until  the  said,  etc.,  with 
force  and  arms,  at  the  county  of  Shelby  aforesaid,  feloniously, 
unlawfully,  purposely,  maliciously,  and  of  his  deliberate  and 
premeditated   malice,   did  neglect,  omit,  and    refuse   to   give, 
provide,  and  furnish,  and  to  permit  and  suffer  to  be  given,  pro- 
vided, and  furnished  to  her,  the  said  M.  N".,  his  infant  daughter 
as  aforesaid,  so  chained,  imprisoned,  and  confined  as  aforesaid, 
snfloicient  clothing,  fire,  or  other  means  of  warmth  and  comfort, 
necessary  to  preserve  and  protect    her,  the  said  M.  N.,  from 
freezing  and  perishing  with  the  said  cold;  by  means  of  which 
said  imprisonment  and  confinement,  and  also  of  such  neglecting 
and  refusing  to  give,  provide,  and  furnish,  and  to  permit  and 
sufiier  to  be  given,  provided,  and  furnished,  to  her  the  said  M. 
N.,  such  clothing,  fire,  or  other  means  of  warmth  and  comfort 
as  were  sufficient  and  necessary  for  the  preservation  and  protec- 
tion of  her,  the  said  M.  N.,  from  freezing  and  perishing  with 
and  of  the  cold,  she,  the  said  M.  l!^.,  then  and  there  became  and 
was  sick,  chilled,  and  frozen;  and  from  the  said,  etc.,  until  the 
said,  etc.,  at  the  county  of  Shelby  aforesaid,  of  the  said  expo- 
sure to  cold,  chilling,  freezing,  and  confinement,  she,  the  said 
M.  N.,  died;  and  so  the  grand  jurors  aforesaid,  upon  their  oaths 
aforesaid,  do  say,  that  the  said  A.  B.,  her,  the  said  M.  N.,  in 
manner  and  form  aforesaid,  at  the  county  aforesaid,  feloniously, 
unlawfully,  purposely,  and  of  his  deliberate  and  premeditated 
malice  (and  with  intent  and  purpose  to  kill  and  murder),  did 
kill  and  murder.    {Conclude  as  in  book  1,  chapter  3.) 

115 


(142)  OFFENCES    AGAINST    THE    PERSON. 

(142)  Second  county  not  alleging  a  chaining. 

That  the  said  A.  B.,  feloniously,  unlawfully,  purposely,  and 
of  his  deliberate  and  premeditated  malice,  contriving  and  in- 
tending the  said  M.  N.  (she  the  said  M.  N.,  then  and  there 
beins:  the  infant  dausrhter  of  him  the  said  A.  B.)  to  kill  and 
murder,  on,  etc.,  and  on  divers  other  days  and   times  between 
that  day  and,  etc.,   with    force   and   arms,  at   the   county  of 
Shelby  aforesaid,  in  and  upon  the  body  of  the  said  M.  l!^.,  in  the 
peace  of  the  State  of  Ohio  then  and  there  being,  unlawfully, 
feloniously,  purposely,  and  of  his  deliberate  and  premeditated 
malice,  did  make  divers  assaults ;  and  the  said  A.  B.,  on  the 
said,  etc.,  and  from  said  last  named  day  until,  etc.,  with  force 
and  arms,  at  the  county  aforesaid,  her,  the  said  M.  N.,  in  a 
certain  room  of  the  dwelling-house  of  the  said  A.  B.,  there  sit- 
uate, unlawfully,  feloniously,  purposely,  and  of  his  deliberate 
and  premeditated  malice,  did  confine  and  imprison,  and  from 
the  said,  etc.,  until,  etc.,  with  force  and  arms,  at  the  county 
aforesaid,  the  said  A.  B.  did  feloniously,  unlawfully,  purposely, 
maliciously,  and  of   his  deliberate  and   premeditated   malice, 
neglect,  omit,  and  refuse  to  give  and  administer,  and  to  permit 
to  be  given  and  administered  to  the  said  M.  N.,  sufficient  meat 
and  drink  necessary  for  the  proper  and  healthful  sustenance,  sup- 
port, and  maintenance  of  the  body  of  her  the  said  M.  JST. ;  and 
that  the  said  A.   B.,  on  the  said,  etc.,  and  from  the  said  last 
named  day  until,  etc.,  with  force  and  arms,  at  the  county  afore- 
said, feloniously,  unlawfully,  purposely,  and  of  his  deliberate 
and  premeditated  malice,  did  neglect  and  refuse  to  provide, 
furnish,  and  administer,  and  to  sutler  and  permit  to  be  provided, 
furnished,  and  administered,  to  her  the  said  M.  N.,  fire,  wear- 
ing apparel,  bed  and  bedding,  or  other  means  of  warmth,  pro- 
tection, and  comfort,  suflicient  and   necessary  to  protect  and 
preserve  her,  the  said  M.  N.,  from  becoming  sick  and  chilled  ; 
she,  the  said  M.  IST.,  then  and  there  being  so  confined  and  im- 
prisoned by  the  said  A.  B.,  as  aforesaid,  and  the  weather  being 
then  and  there  cold  and  inclement;  by  means  of  w^hich  said 
confinement  and  imprisonment,  and    also  of  such    neglecting 
and  refusing  to  give,  furnish,  provide,  and  administer,  and  to 
suffer  and  to  permit  to  be  given,  provided,  and  administered,  to 
116 


HOMICIDE.  (142a) 

her,  the  said  M.  'N.,  such  meat  and  drink  as  were  sufficient  and 
necessary  for  the  health  and  proper  support,  sustenance,  and 
maintenance  of  the  hody  of  her,  the  said  M.  N".,  and  also  by 
means  of  such  neglecting  and  refusing  to  furnish,  provide,  and 
administer,  and  to  suffer  and  permit  to  be  furnished,  provided, 
and  administered  to  her,  the  said  M.  N.,  such  fire,  wearing 
apparel,  bed  and  bedding,  or  other  means  of  protection,  warmth, 
and  comfort,  sufficient  and  necessary  to  protect  her,  the  said  M. 
!N".,  from  becoming  sick  and  chilled,  she,  the  said  M.  N.,  from 
the  said,  etc.,  until  the  said,  etc.,  at  the  county  of  Shelby  afore- 
said, did  languish,  and  languishing  did  live;  on  which  said, 
etc.,  she,  the  said  M.  N.,  at  the  county  aforesaid,  of  the  said 
imprisonment,  deprivation  of  meat  and  drink,  fire,  clothing, 
bed  and  bedding,  or  the  means  of  warmth  and  comfort,  died; 
and  so  the  grand  jurors  aforesaid  do  say,  that  the  said  A.  B., 
in  manner  and  form  aforesaid,  feloniously,  unlawfully,  pur- 
posely, maliciously,  and  of  his  deliberate  and  premeditated 
malice  aforethought,  her,  the  said  M.  N.,  did  kill  and  murder. 
{Conclude  as  in  book  1,  chapter  3.) 

(142«)  By  slabbing,  under  Ohio  statnte.{k) 

That  J.  L.,  on,  etc.,  at,  etc.,  with  force  and  arms,  in  and  upon 
one  N.  H.,  in  the  peace  of  God  and  the  laws  of  this  State  then 
and  there  being,  purposely,  and  of  deliberate  and  premeditated 
malice, did  make  an  assault;  and  that  the  said  J.  L.,  with  a  cer- 
tain knife  which  he  the  said  J.  L.  in  his  right  hand  then  and 
there  held,  then  and  there  him,  the  said  N.  H.,  in  and  upon, 
etc.  {describing  spot),  of  him  the  said  K.  H.,  then  and  there  pur- 
posely and  of  deliberate  and  premeditated  malice,  did  strike, 
cut,  and  stab,  thereby  then  and  there,  with  the  knife  aforesaid 
giving  to  him  the  said  1^.  H.,  in  and  upon  {stating  spot)  of  him, 
the  said  'N.  H.,  purposely  and  of  deliberate  and  premeditated 
malice,  one  mortal  wound,  of  the  length  of  four  inches,  and  of 
the  depth  of  six  inches;  of  which  said  mortal  wound,  so  as 
aforesaid  purposely  and  of  deliberate  and  premeditated  malice 
given,  by  the  said  J.  L.  to  the  said  IsT.  H.,  he  the  said  K  II.,  on 
the  day  aforesaid,  and  in  the  year  aforesaid,  and  at  the  county 

{k)  This  was  sustained  in  LoefFner  v.  State,  10  Ohio  St.  598. 

117 


(144)  OFFENCES    AGAINST    THE    PERSON. 

aforesaid,  instantly  died.  And  so  the  jurors  aforesaid,  upon 
their  oaths  and  affirmations  aforesaid,  do  say,  that  he  the  said 
J.  L.,  him  the  said  IS".  H.,  in  manner  and  by  the  means  afore- 
said, on  the  day  and  in  the  year  aforesaid,  and  at  the  county 
aforesaid,  purposely  and  of  deliberate  and  premeditated  malice, 
did  kill  and  murder.     {Conclude  as  in  book  1,  chapter  3.) 

(143)  By  forcing  a  sick  person  into  the  streets.(l) 

That  A.  B.,  of,  etc.,  intending  one  C.  D.  feloniously,  wilfully, 
and  of  his  malice  aforethought,  to  kill  and  murder,  on  at 

with  force  and  arms,  at  an  unseasonable  hour  in  the 
night,  to  wit,  about  the  hour  of  eleven  in  the  night  of  the  same 
day,  in  and  upon  the  said  C.  D.,  he  the  said  C.  D.  then  and 
there  being  in  extreme  sickness  and  weakness  of  body,  occa- 
sioned by  fever,  and  then  and  there  confined  to  his  bed  in  the 
dwelling-house  of  him  the  said  A.  B.,  there  situate,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  make  an  assault; 
and  that  the  said  A.  B.  him  the  said  C.  D.,  from  out  of  the 
said  bed,  and  also  out  of  the  said  dwelling-house,  into  the  pub- 
lic and  open  street  there,  did  then  and  there  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  remove,  force,  and  drive, 
and  there  abandon  and  leave;  he  the  said  A.  B.  then  and  there 
w^ell  knowing  the  said  C.  D.  to  be  then  in  extreme  sickness  and 
weakness  of  body,  occasioned  by  the  fever  aforesaid ;  by  means 
whereof,  he  the  said  C.  B.,  through  the  cold  and  the  inclemency 
of  the  weather,  and  for  want  of  due  care  and  other  necessaries 
requisite  for  a  person  in  such  sickness  and  weakness  as  afore- 
said, then  and  there  died;  and  so  the  jurors  aforesaid,  upon 
their  oaths  aforesaid,  do  say,  that  the  said  A.  B.,  him  the  said 
C.  D.,  in  manner  and  form  aforesaid,  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  kill  and  murder.  {Conclude  as 
in  book  1,  chapter  3.) 

(144)  Murder  of  an  infant  by  suffocation.{m) 

That  on  the  twenty-sixth  day  of  June,  etc.,  M.  H.,  etc.  {set- 
ting forth  addition^  birth  of  child  ^  etc.,  and  proceeding):  on  the  said 

(/)  3  Chit.  C.  L.  771;  Davis's  Precedents,  189. 

(m)  R,.   V.  Huggins,  3   C.  &  P.   414.     Three  exceptions  were  taken   to  this 
inquisition  :   1st.  That  the  time  was  imperfectly  stated;   2d.  That  there  was  no 

118 


HOMICIDE.  (l^S) 

child  "did  make  an  assault;  and  that  the  said  M.  H.,  her  the 
said  new-born  child,  with  both  her  hands,  in  a  certain  piece  of 
flannel  of  no  value,  then  and  there  feloniously,  wilfully,  and  of 
her  malice  aforethought,  did  wrap  up  and  fold,  by  means  of 
which  said  wrapping  up  and  folding  the  said  new-born  female 
bastard  child  in  the  piece  of  flannel  aforesaid,  she  the  said  new- 
born female  child  was  then  and  there  suftbcated  and  smothered; 
of  which  said  suflbcation  and  smothering  she  the  said  new-born 
female  child,  then  and  there  instantly  died;  and  so  the  jurors 
aforesaid,"  etc. 

(145)  llurder  by  stamping^  heating^  and  Mching. 

That  T.  V.  Jr.,  late  of  the  said  county,  yeoman,  not  having 
the  fear  of  God  before  his  eyes,  but  being  moved  and  seduced 
by  the  instigation  of  the  devil,  on,  etc.,  at,  etc.,  in  and  upon 
one  N.  R.,  in  the  peace  of  God  and  the  commonwealth,  then 
and  there  being,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  make  an  assault ;  and  that  the  said  T.  Y.  Jr., 
then  and  there  with  both  his  hands,  the  said  ^.  R.,  in  and  upon 
the  head,  neck,  and  breast  of  him  the  said  ^N".  R.,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  strike  and  beat; 
and  that  the  said  T.  V.  Jr.,  then  and  there,  with  both  his  hands 
and  feet,  the  said  N.  R.,  so  and  upon  the  ground,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  knock,  cast,  and 
throw;  and  the  said  IS".  R.,  so  on  the  ground  lying  and  being, 
he  the  said  T.  V.  Jr.,  with  both  his  hands,  knees,  and  feet,  in 
and  upon  the  head,  neck,  breast,  stomach,  back,  and  sides  of  him 
the  said  N.  R.,  did  then  and  there  feloniously,  wilfully,  and  of 
his  malice  aforethought,  strike,  beat,  press,  and  kick;  and  that 
the  said  T.  V.  Jr.,  then  and  there  the  said  if.  R.,  by  and  upon 
the  neck  and  throat  of  him  the  said  N".  R.,  with  both  the  hands 
of  him  the  said  T.  V.  Jr.,  did  feloniously,  wilfully,  and  of  his 
malice  aforethought,  grasp  and  seize,  thereby  choking  and 
strangling  the  said  N.  R.,  and  by  the  said  striking,  beating, 
casting,  throwing,  pressing,  and  kicking,  giving  to  the  said  JST. 

imputation  to  the  prisoner  of  any  act  sufficient  to  cause  death  ;  and  3d.  That 
there  was  a  variance  in  the  name  of  one  of  the  grand  jury.  Vaufrhan,  B., 
quashed  the  inquisition  on  the  latter  ground,  hokling  that  tlic  indictment  was 
itself  good. 

119 


(146)  OFFENCES    AGAINST    THE    PERSON. 

R.  several  mortal  bruises;  of  which  said  several  mortal  bruises, 
choking,  and  strangling,  the  said  N.  R.  then  and  there  in- 
stantly died. 

And  so  the  inquest  aforesaid,  on  their  oaths  and  affirmations 
aforesaid,  do  say,  that  the  said  T.  V.  Jr..  the  day  and  year  afore- 
said, at  Chester  County  aforesaid,  in  manner  and  form  afore- 
said, the  said  N.  R..  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  kill  and  murder,  contrary,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 

(146)  Uurder  by  bccding  tvitli  fists  and  McJcing  on  the  ground,  no 
mortal  wound  being  discovered. [n) 
That  W.  W.,  late  of,  etc.,  on,  etc.,  at,  etc.,  with  force  and 
arms,  at  aforesaid,  etc.,  in  and  upon  one  E.  D.,  in  the 

peace  of  God  and  the  said  commonwealth,  then  and  there  being, 
feloniousl}^  wilfully,  and  of  his  malice  aforethought,  did  make 
an  assault;  and  that  the  said  W.  W.  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  strike,  beat,  and 
kick  the  said  E.  D.  with  his  hands  and  feet,  in  and  upon  the 
head,  breast,  back,  belly,  sides,  and  other  parts  of  the  body  of 
him  the  said  E.  D.,  and  did  then  and  there  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  cast  and  throw  the  said 
E.  D.  down  unto  and  upon  the  ground  with  great  force  and 
violence  there,  giving  unto  the  said  E.  D.  then  and  there,. as 
well  by  the  beating,  striking,  and  kicking  of  him  the  said  E. 
D.,  in  manner  and  form  aforesaid,  as  by  the  casting  and  throw- 
ing of  him  the  said  E.  D.  down  as  aforesaid,  several  mortal 
strokes,  wounds,  and  bruises  in  and  upon  the  head,  breast,  back, 
belly,  sides,  and  other  parts  of  the  body  of  him  the  said  E.  D., 
of  which  said  mortal  strokes,  wounds,  and  bruises  he  the  said  E. 
D.,  from,  etc.,  until,  etc.,  at,  etc.,  did  languish,  and  languishing 
did  live;  on  which  said  day  of  in  the  year  afore- 

said, the  said  E.  D.,at,  etc.,  of  the  several  mortal  strokes,  wounds, 
and  bruises  aforesaid,  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  W.  W.  him  the  said 
E.  D.,  in  the  manner  and  by  the  means  aforesaid,  feloniously, 
willfully,  and  of  his  malice  aforethought,  did  kill  and  murder. 
{Conclude  as  in  book  1,  cliapter  3.) 

(72)  Stark.  C.  P.  419. 

120 


HOMICIDE.  (147) 

(147)  For  stabbing,  casting  into  the  sea,  and  drowning  the  deceased 
on  the  high  sea,  etc.{o) 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.  {and 
others,  naming  them),  being  citizens  of  the  United  States,  on 
upon  the  high  sea,  out  of  the  jurisdiction  of  any  particu- 
lar state,  in  and  on  board  a  certain  schooner,  the  name  of  which 
is  to  the  jurors  aforesaid  unknown,  in  and  upon  one  C.  D.,a  mar- 
iner in  and  on  board  said  vessel,  piratically  and  feloniously  did 
make  an  assault,  and  that  he  the  said  A.  B.,  with  a  certain  steel 
da^o-er,  which  he  the  said  A.  B.  in  his  hand  then  and  there  had 
and  held,  the  said  C.  D.,  in  and  upon  the  breast  of  him  the  said 
C.  D.,  upon  the  high  sea,  and  on  board  the  schooner  aforesaid, 
and  out  of  the  jurisdiction  of  any  particular  state,  piratically 
and  feloniously  did  strike  and  thrust,  giving  to  the  said  C.  D., 
in  and  upon  the  breast  of  him  the  said  C.  D.,  upon  the  high  sea 
aforesaid,  in  and  on  board  the  said  schooner,  and  out  of  the 
jurisdiction  of  any  particular  state,  piratically  and  feloniously, 
in  and  upon  the  breast  of  him  the  said  C.  D.,  several  grievous, 
dangerous,  and  mortal  wounds;  and  did  then  and  there,  in  and 
on  board  the  schooner  aforesaid,  upon  the  high  sea,  and  out  of 
the  jurisdiction  of  any  particular  state,  piratically  and  felo- 
niously, him  the  said  C.  D.  cast  and  throw  from  out  of  the  said 
schooner  into  the  sea,  and  plunge,  sink,  and  drown  him  in  the 
sea  aforesaid;  of  which  said  mortal  wounds,  casting,  throwing, 
plunging,  sinking,  and  drowning,  the  said  C.  D.,  in  and  upon 
the  high  sea  aforesaid,  out  of  the  jurisdiction  of  any  particular 
state,  then  and  there  instantly  died.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that,  by  reason  of  the  casting 
and  throwing  the  said  C.  D.  in  the  sea  as  aforesaid,  they  cannot 
describe  the  said  mortal  wounds.  And  so  the  jurors  aforesaid, 
upon  their  oath*  aforesaid,  do  say,  that  the  said  A.  B.  {and 
others)  him  the  said  C.  D.,  then  and  there,  upon  the  high  sea 
aforesaid,  out  of  the  jurisdiction  of  any  particular  state,  in 
manner  and  form  aforesaid,  piratically  and  feloniously  did  kill 
and  murder,  against,  etc.     {Conclude  as  in  book  1,  cJuipter  3.) 

(o)  Davis's  Tree.  228.    This  was  the  form  in  U.  S.  v.  Hohnes,  5  Wheat.  412. 

121 


(148)  OFFENCES  AGAINST  THE  PERSON. 

(148)  Knocking  to  the  grouncU  and  beating,  kicking,  and 
wounding.{p) 

That  R.  M.,  late  of  the  parish  of  Wakefield,  in  the  county 
of  York,  laborer,  and  B.  M.,  late  of  the  same  place,  laborer, 
not  having  the  fear  of  God  before  their  eyes,  but  being  moved 
and  seduced  by  the  instigation  of  the  devil,  on,  etc.,  with  force 
and  arms,  at  the  parish  aforesaid,  in  the  county  aforesaid,  in 
and  upon  one  J,  D.,  in  the  peace  of  God  and  our  said  lord  the 
king,  then  and  there  being,  feloniously,  wilfully,  and  of  their 
malice  aforethought,  did  make  an  assault;  and  that  they,  the 
said  R.  M.  and  B.  M.,  then  and  there  feloniously,  wilfully,  and 
of  their  malice  aforethought,  did  with  great  force  and  violence 
pull,  push,  cast,  and  throw  the  said  J.  D.  down  unto  and  upon 
the  ground  there,  and  that  the  said  R.  M.  and  B.  M.,  with  both 
the  hands  and  feet  of  them  the  said  R.  M.  and  B.  M.,  then  and 
there,  and  whilst  the  said  J.  D.  was  so  lying  and  being  upon  the 
ground,  him  the  said  J.  D.,  in  and  upon  the  head,  stomach,  breast, 
belly,  back,  and  sides  of  him  the  said  J.  D.,  then  and  there 
feloniously,  wilfully,  and  of  their  malice  aforethought,  divers 
times  with  great  force  and  violence  did  strike,  beat,  and  kick, 
and  that  the  said  R.  M.  and  B.  M.,  with  both  the  hands,  feet, 
and  knees  of  them,  the  said  R.  M.  and  B.  M.,  and  each  of  them, 
then  and  there,  and  whilst  the  said  J.  D.  was  so  lying  and 
being  upon  the  ground  as  aforesaid,  him  the  said  J.  D.,  in  and 
upon  the  belly,  head,  stomach,  and  sides  of  him  the  said  J.  D., 
then  and  there  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  with  great  force  and  violence  strike,  push,  press, 
and  squeeze,  giving  to  the  said  J.  D.,  then  and  there,  as  well 
by  the  pulling,  pushing,  casting,  and  throwing  of  him  the  said 
J.  D.  down  unto  and  upon  the  ground  as  aforesaid,  and  by  the 
striking,  beating,  and  kicking  of  him  the  said  J.  D.,  whilst 
he  was  so  lying  and  being  upon  the  ground  as  aforesaid,  in 
and  upon  the  head,  stomach,  breast,  belly,  back,  and  sides  of 
him  the  said  J.  D.  as  aforesaid,  as  also  by  the  striking,  pushing, 
pressing,  and  squeezing  of  him  the  said  J.  D,,  whilst  he  the 

(p)  R.  V.  Mosley,  1  Mood.  C.  C.  98.  This  form  was  sustained  by  the  twelve 
jiulgos,  it  being  held  that  it  is  not  necessary  to  set  forth  the  length,  depth,  or 
breadth  of  the  wound. 

122 


HOMICIDE.  (149) 

said  J.  D.  was  so  lying  and  being  upon  the  ground  as  aforesaid, 
in  and  upon  the  belly,  breast,  stomach,  and  sides  of  him  the 
said  J.  D.,  with  the  hands,  knees,  and  feet  of  them,  the  said  R. 
M.  and  B.  M.,  in  manner  aforesaid,  several  mortal  bruises, 
lacerations,  and  wounds  in  and  upon  the  belly,  breast,  stomach, 
and  sides  of  him  the  said  J.  D. ;  of  which  said  several  mortal 
bruises,  lacerations,  and  wounds  the  said  J,  D.,  from  the  said, 
etc.,  until,  etc.,  in  the  parish  aforesaid,  in  the  county  aforesaid, 
did  languish,  and. languishing  did  live;  on  which,  etc.,  the  said 
J.  D.,  at  the  parish  aforesaid,  in  the  county  aforesaid,  of  the 
said  several  mortal  bruises,  lacerations,  and  wounds,  died;  and 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  R.  M.  and  B.  M.  him  the  said  J.  D.  in  manner  and 
form  and  by  the  means  aforesaid,  feloniously,  wilfully,  and  of 
their  malice  aforethought,  did  kill  and  murder.  {Conclude  as 
ill  booh  1,  chapte)'  3.) 

(149)  Murder  by  striking  with  stone.s.{q^ 

That  J.  D.,  late  of,  etc.,  laborer,  J.  P.,  late  of,  etc.,  laborer,  and 
C.  T.,  late  of,  etc.,  laborer,  not  having  the  fear  of  God  before 
their  eyes,  but  being  moved  and  seduced  by  the  instigation  of 
the  devil,  on  the  sixteenth  July,  4  Geo.  IV.,  with  force  and 
arms,  at,  etc.,  in  and  upon  one  W.  W.,  in  the  peace,  etc.,  then 
and  there  being,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  make  an  assault ;  and  that  the  said  J.  D.,  J.  P.,  and 
C.  T.,  with  certain  stones  of  no  value,  which  they  the  said  J. 
D.,  J.  P.,  and  C.  T.  in  their  right  hands  then  and  there  had  and 
held,  in  and  upon  the  back  part  of  the  head  of  him  the  said 
W.  W.  then  and  there  feloniously,  wilfully,  and  of  their  malice 
aforethought,  did  cast  and  throw,  and  that  the  said  J.  B.,  J.  P., 
and  C.  T.,  with  the  stones  aforesaid,  so  as  aforesaid  cast  and 
thrown,  the  aforesaid  W.  W.,  in  and  upon  the  back  part  of  the 
head  of  him  the  said  W.  W.,  then  and  there  feloniously,  wil- 
fully, and  of  their  malice  aforethought,  did  strike,  penetrate, 
and  wound,  then  and  there  giving  to  the  said   W.  W.,  by  the 

{([)  R.  V.  Dale,  9  Moore,  19.  An  arrest  of  judgment  was  asked,  first,  because 
the  number  of  stones  was  uncertain  ;  and,  secondly,  because  it  was  not  stated 
in  which  hand  of  the  several  defendants  they  were  held.  The  twelve  judges, 
however,  held  the  indictment  good,  and  the  prisoner  was  executed.  See  supra, 
notes  to  form  117. 

123 


(150)  OFFENCES    AGAINST    THE    PERSON. 

casting  and  throwing  of  the  stones  aforesaid,  in  and  upon  the 
back  part  of  the  head  of  him  the  said  W.  W.,  one  mortal 
wound,  bruise,  fracture,  and  contusion,  of  the  breadth  of  one 
inch,  and  of  the  depth  of  half  an  inch,  of  which  said  mortal 
wound,  bruise,  fracture,  and  contusion  he  the  said  W.  W.,  theu 
and  there  instantly  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  J.  D.,  J.  P.,  and  C.  T. 
him  the  said  W.  W.,  in  the  manner  and  by  the  means  aforesaid, 
feloniously,  wilfully,  and  of  their  malice  aforethought,  did  kill 
and  murder,  against  the  peace,  etc.(r) 

(150)  Murder  by  casting  a  stone. {s) 

That  A.  B.,  late  of  the  said  yeoman,  on  the  day 

of  in  the  year  of  our  Lord  one  thousand,  etc.,  with  force 

and  arms,  at  aforesaid,   in   the  county  aforesaid,  in  and 

upon  one  M.,  in  the  peace  of  God  and  of  the  said  common- 
wealth, then  and  there  being,  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  make  an  assault,  and  that  the  said  A. 
B.,  a  certain  stone  of  no  value,  which  he  the  said  A.  B.  in  his 
right  hand  then  and  there  had  and  held,  in  and  upon  the  right 

(r)  On  the  verdict  of  guilty  being  recorded,  Mr.  D.  F.  Jones  moved  in  arrest 
of  judgment,  that  the  indictment  was  defective  in  form  on  the  following  grounds  : 
First,  that  after  the  words  "certain  stones"  there  should  have  been  a  videlicet 
mentioning  the  number  of  stones.  Secondly,  that  it  was  not  expressed  in  what 
hand  they  were  held  by  each  of  the  defendants.  And,  lastly,  that  the  mode  of 
causing  the  death  was  not  properly  stated. 

Judgment  was  accordingly  respited,  and  the  above  points  reserved  for  the 
consideration  of  the  twelve  judges,  and  were  now  argued  for  the  prisoner.  Dale, 
by  Mr.  D.  F.  Jones,  who  cited  as  to  the  first.  The  King  v.  Beech,  1  Leach  C. 
C.  3d  ed.  159  ;  Hale's  P.  C.  vol.  ii.  pp.  182,  185.  Secondly,  Hale's  P.  C.  vol.  ii. 
p.  185  ;   Cuppledick's  case,  44  Eliz.  K.  B.  ;   Ld.  Sanchar's  case,  9  Rep.  119. 

[Ld.  Chief  Justice  Abbott.  It  is  very  possible  that  ten  stones  may  produce 
one  mortal  wound.] 

[Mr.  Justice  Bayley.  If  a  man  give  two  blows  they  may  only  produce  one 
wound ;  and  it  cannot  be  for  a  moment  supposed  that  it  would  be  necessary  to 
allege  the  number  of  shots  in  a  gun,  and  they  receive  an  impetus  from  the  gun 
as  stones  thrown  by  the  hand.] 

Thirdly,  a  case  before  Mr.  Justice  Chambre,  at  the  Spring  Assizes  at  York, 
1806. 

[^Ir.  Justice  Holroyd.  The  verbs  cast  and  throw  may  be  used  either  in  an 
active  or  neuter  sense,  as  to  throw  at  backgammon,  or  with  dice,  or  to  cast  or 
throw  with  a  net  into  the  sea ;  and  the  latter  part  of  this  indictment  shows  that 
they  had  been  used  in  the  latter  sense.] 

Mr.  J.  Park  was  to  have  argued  on  the  part  of  the  crown;  but  the  judges 
"were  unanimously  of  opinion  that  the  conviction  was  right. 

The  convict  was  afterwards  executed. 

(.<()  Stark.  C.  P.  424.     See  R.  v.  Dale,  1  Mood.  C.  C.  5. 

124 


HOMICIDE.  (151) 

side  of  the  head,  near  the  right  temple  of  her  the  said  M.,  then 
and  there  feloniously,  wilfully,  and  of  his  malice  aforethought, 
did  cast  and  throw  ;  and  that  the  said  A.  B.,  with  the  stone 
aforesaid,  so  as  aforesaid  cast  and  thrown,  the  aforesaid  M,,  in 
and  upon  the  right  side  of  the  head,  near  the  right  temple  of 
her  the  said  M.,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  strike,  penetrate,  and  wound  ;  giving 
to  the  said  M.,  by  the  casting  and  throwing  of  the  stone  afore- 
said, in  and  upon  the  right  side  of  the  head  near  the  right 
temple  of  her  the  said  M.,  one  mortal  wound,  of  the  length  of 
one  inch,  and  of  the  depth  of  one  inch,  of  which  said  mortal 
wound  she  the  said  M.,  from  the  said  day  of  in  the 

year  aforesaid,  until   the  day  of  in   the  same  year, 

at  aforesaid,  at  the  county  aforesaid,  did  languish,  and 

languishing  did  live  ;  on  which  said  day  of  in  the 

year  aforesaid,  the  said  M.,  at  aforesaid,  in  the  county  afore- 
said, of  the  said  mortal  wound  died.  And  so  the  jurors  afore- 
said, upon  their  oath  {o7'  oaths  and  affirmations)  aforesaid,  do  say, 
that  the  said  A.  B.,  her  the  said  M.,  in  the  manner  and  by  the 
means  aforesaid,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  kill  and  murder.    {Conclude  as  in  book  1,  chapter  3.) 

(151)  31urder  by  striking  loith  a  stone.{t) 

That  E.  W.,  not  having  the  fear  of  God  before  his  eyes,  etc., 
on  the  twenty-third  day  of  July,  one  thousand  eight  hundred 
and  twelve,  with  force  and  arms,  at,  etc.,  in  and  upon  one  S. 
S.,  in  the  peace  of  God,  etc.,  then  and  there  being,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  make  an  assault; 
and  that  the  said  E.  W.  (with)  a  certain  stone  of  no  value, 
which  he  the  said  E.  W.  in  his  right  hand  then  and  there  had 
and  held,  in  and  upon  the  right  side  of  the  head  near  the 
right  temple  of  him  the  said  S.  S.,  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  cast  and  throw; 

(0  White  V.  Com.,  6  Binn.  179.  The  first  objection  to  this  count  arising 
from  the  interpolation  of  tlie  word  "  witli"  in  the  sixth  line,  was  treated  by  the 
court  as  arisinjf  from  a  clerical  error,  and  as  not  so  far  affecting  the  sense  of  the 
averment  as  to  vitiate  it.  It  is  not  necessary,  it  was  also  said,  to  distinguish 
between  the  two  degrees  in  an  indictment  for  homicide.  So  far  as  the  indict- 
ment was  concerned,  the  judgment  of  the  court  below  on  a  verdict  of  murder  in 
the  first  degree  was  sustained. 

125 


(152)  OFFENCES    AGAINST    THE    PERSON. 

and  that  lie  the  said  E.  W.,  with  the  stone  aforesaid,  so  as 
aforesaid  cast  and  thrown,  the  aforesaid  S.  S.,  in  and  upon  the 
right  side  of  the  head  near  the  right  temple  of  him  the  said  S. 
S.,  then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  strike,  penetrate,  and  wound,  giving  to  the  said  S. 
S.,  by  the  casting  and  throwing  of  the  stone  aforesaid,  in  and 
ujjon  the  right  side  of  the  head,  etc.,  one  mortal  wound,  of  the 
length  of  two  inches,  and  of  the  depth  of  one  inch,  of  which 
said  mortal  wound  the  said  S.  S.  then  and  there  instantly  died ; 
and  so  the  jurors  aforesaid,  upon  their  oaths,  etc.,  say,  that  the 
said  E.  "VV.,  him  the  said  S.  S.,  in  manner  and  form  aforesaid, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder.     {Conclude  as  in  book  1,  chapter  3.) 

(152)  By  striking  with  an  axe  on  the  neck.{u) 

That  J.  M.,  late  of  said  county,  laborer,  not  having  the  fear 
of  God  before  his  eyes,  but  being  moved  and  seduced  by  the 
instigation  of  the  devil,  on,  etc.,  with  force  and  arms,  at,  to 
wit,  in  the  county  of  Jackson  aforesaid,  in  and  upon  one  S. 
TV.,  in  the  peace  of  God  and  the  State,  then  and  there  being, 
feloniously,  wilfully,  unlawfully,  and  of  his  malice  afore- 
thought, did  make  an  assault;  and  the  said  J.  M.  with  a  cer- 
tain axe  made  of  iron  and  steel,  of  the  value  of  one  dollar, 
which  he  the  said  J.  M.  in  both  his  hands  then  and  there  held, 
the  said  S.  W.,  in  and  upon  the  right  side  of  the  neck  of  him 
the  said  S.  W.,  between  the  head  and  shoulder  of  him  the  said 
S.  "VV.,  then  and  there  unlawfully  and  of  his  malice  afore- 
thought, did  strike,  thrust,  and  penetrate,  giving  to  the  said  S. 
W.,  then  and  there,  with  the  said  axe  aforesaid,  in  and  upon 
the  right  side  of  the  neck  of  him  the  said  S.  W.,  between  the 
head  and  shoulder  of  him  the  said  S.  W.,  one  mortal  wound,  of 
the  length  of  ten  inches,  and  of  the  depth  of  four  inches,  of  which 
said  mortal  wound  the  said  S.  W.,  in  the  county  of  Jackson 
aforesaid,  on  the  day  aforesaid,  and  the  year  aforesaid,  did  in- 
stantly die;  and  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  say,  that  the  said  J.  M.,  the  said  S.  \V.,  in  manner  and 

(m)  This  form  was  sustained  in  Mitchell  v.  State,  8  Yerg.  515. 

126 


HOMICIDE.  (1"35) 

form  aforesaid,  unlawfully,  and  of  his  malice  aforethought,  did 
kill  and  murder.     {Conclude  as  in  book  1,  cha'pter  3.) 

(153)  By  striking  with  a  knife  on  the  hip^  the  death  occurring  in 
another  state.(v) 

That  W.  D.,  late  of  the  said  county  of  Stokes,  laborer,  not 
having  the  fear  of  God  before  his  eyes,  but  being  moved  and 
seduced  by  the  instigation  of  the  devil,  on,  etc.,  with  force  and 
arms,  in  the  county  aforesaid,  in  and  upon  one  A.  H.,  in  the 
peace  of  God  and  the  state,  then  and  there  being,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  make  an  assault, 
and  that  the  said  W.  D.,  w^ith  a  certain  knife  of  the  value  of 
sixpence,  which  he  the  said  W.  D.  in  his  right  hand  then  and 
there  had  and  held,  the  said  A.  II.,  in  and  upon  the  right  hip 
and  the  left  side  of  the  back  near  the  back-I)one  of  him  the  said 
A.  H.,  then  and  there,  feloniously,  wnlfully,  and  of  his  malice 
aforethought,  did  strike  and  thrust,  giving  to  the  said  A.  H., 
then  and  there  with  the  knife  aforesaid,  in  and  upon  the  said 
right  hip  and  the  left  side  of  the  back  near  the  back-bone  of 
the  said  A.  H.,  several  mortal  wounds,  each  of  the  breadth  of. 
three  inches,  and  of  the  depth  of  six  inches,  of  which  said 
several  mortal  wounds  the  said  A.  H.,  from  the  said,  etc.,  in  the 
year  aforesaid,  until,  etc.,  as  well  as  in  the  county  aforesaid,  as 
in  the  county  of  Patrick,  in  the  state  of  Virginia,  did  languish, 
and  languishing  did  live;  on  which  said  twenty-ninth  day  of 
August,  in  the  year  aforesaid,  the  said  A.  II.,  in  the  said  county 
of  Patrick,  in  the  state  of  Virginia,  of  the  said  several  mortal 
w^ounds  died;  and  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  say,  that  the  said  W.  D.,  the  said  A.  H.,  in  manner  and 
by  the  means  aforesaid,  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  kill  and  murder.  {Conclude  as  in  book  1,  chap- 
ter 3.) 

(155)  Murder  by  stabbing  with  a  knife. {w) 
That  A.  B.,  late  of  the  said  county,  yeoman,  on  the  day 

(u)  In  this  form,  which  was  sustained  in  Xorth  Carolina,  State  v.  Dnnkley, 
3  Iredell,  117,  the  statutory  conclusion  was  omitted;  and  the  same  feature  was 
sustained  in  Com  v.  White,  6  Binn.  183.      See  supra,  concluding  note  to  form  111. 

(«')  Stark.  C.  P.  424.    See  form  for  "Cutting  Throat,"  supra,  116. 

127 


(156)  OFFENCES  AGAINST  THE  PERSON. 

of  in  the  year  of  our  Lord,  etc.,  with  force  and  arms,  at 

aforesaid,  in  the  county  aforesaid,  in  and  upon  one  J.  M., 
in  the  peace  of  God  and  of  the  said  state,  then  and  there  being, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  make 
an  assault,  and  that  he  the  said  A.  B.,  with  a  certain  knife  of 
the  value  of  sixpence,  which  he  the  said  A.  B.,in  his  right  hand 
then  and  there  had  and  held,  the  said  J.  M.,  in  and  upon  the 
left  side  of  the  belly,  between  the  short  ribs  of  him  the  said 
J.  M.,  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  strike  and  thrust,  giving  to  the  said  J.  M., 
then  and  there,  with  the  knife  aforesaid,  in  and  upon  the  afore- 
said left  side  of  the  belly,  between  the  short  ribs  of  him  the 
said  J.  M.,  one  mortal  wound,  of  the  breadth  of  three  inches, 
and  of  the  depth  of  six  inches,  of  which  said  mortal  wound  the 
said  J.  M.,  from  the  said  day  of  in  the  year  afore- 

said, until  the  day  of  in   the  same  year,  at 

aforesaid,  in  the  county  aforesaid,  did  languish,  and  languishing 
did  live;  on  which  said  day  of  in  the  year  aforesaid, 

the  said  J.  M.,  at  aforesaid,  in  the  county  aforesaid,  of 

the  said  mortal  wound  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  A.  B.,  him  the  said 
J.  M.,  in  the  manner  and  by  the  means  aforesaid,  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  kill  and  murder. 
{Conclude  as  in  hook  1,  chapter  3.) 

(156)  Murder.    Against  J.  T.for  shooting  the  deceased^  and  against 
A.  S.  for  aiding  and  abetting. {x) 

That  J.  T.,  late,  etc.,  and  A.  S.,  late,  etc.,  on  the  day  of 

in  the  year,  etc.,  with  force  and  arms,  at  aforesaid, 

in  the  county  aforesaid,  in  and  upon  one  S.  G.,  in  the  peace  of 
God,  and  of  our  said  lord  the  king,  then  and  there  being,  felo- 
niously, wilfully,  and  of  their  malice  aforethought,  did  make 
an  assault;  and  that  the  said  J.  T.,  a  certain  gun  called  a  car- 
bine, of  the  value  of  ten  pounds,  then  and  there  charged  with 
gunpowder  and  a  leaden  bullet,  which  said  gun  he  the  said  J.  T., 

(x)  Stark.  C.  P.  423;  R.  v.  Taylor  and  Shaw,  Leach,  398.  A.  S.  was  found 
fniiltv  and  J.  T.  acquitted  ;  and  a  majority  of  tlie  judges  were  of  ojjinion  that 
the  conviction  of  A.  S.  was  good,  but  the  prisoner  afterwards  received  a  free 
pardon.      See  Stark.  C.  P.  88,  89. 

See  for  other  forms  for  "Shooting,"  supra,  115,  117. 
128 


HOMICIDE.  (156a) 

in  both  his  hands  then  and  there  had  and  held,  at  and  against 
the  said  S.  G.,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  shoot  ofi'  and  discharge ;  and  that  the 
said  J.  T.,  with  the  leaden  bullet  aforesaid,  by  means  of  slioot 
ing  off  and  discharging  the  said  gun  so  loaded,  to,  at,  and 
against  the  said  S.  Gr.  as  aforesaid,  did  then  and  there  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  strike,  penetrate, 
and  wound  the  said  S.  G.,  in  and  upon  the  right  side  of  the 
head  of  him  the  said  S.  G.,  near  his  right  temple,  giving  to  him 
the  said  S.  G.,  then  and  there,  with  the  leaden  bullet  aforesaid, 
by  means  of  shooting  otf  and  discharging  the  said  gun  so  loaded, 
to,  at,  and  against  the  said  S.  G.,  and  by  such  striking,  pene- 
trating, and  wounding  the  said  S.  G.,  as  aforesaid,  one  mortal 
wound  in  and  through  the  head  of  him  the  said  S.  G.,  of  which 
said  mortal  wound  the  said  S.  G.  did  tljen  and  there  instantly 
die;  and  that  the  said  A.  S.,  then  and  there  feloniously,  wilfully, 
and  of  his  malice  aforethought,  was  present  aiding,  helping, 
abetting,  comforting,  assisting,  and  maintaining  the  said  J.  T. 
the  felony  and  murder  aforesaid,  in  manner  and  form  aforesaid, 
to  do  and  commit,  etc.  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(156a)  Murder  in  ■producing  abortion. 

That  "W.  H.  B.,  etc.,  "did  unlawfully,  feloniously,  and  wil- 
fully use  a  certain  instrument  called  a  gum-bougie,  by  then  and 
there  forcing,  thrusting,  and  inserting  the  said  instrument, 
called  a  gum-bougie,  into  the  womb  and  private  parts  of  one 
M.  ]Sr.,  then  and  there  being  a  woman  pregnant  with  child,  and  in 
the  peace  of  the  people,  with  intent  then  and  there  to  produce 
the  miscarriage  of  the  said  M.  N.,  and  did  thereby,  unlawfully, 
feloniously,  and  wilfully,  with  malice  aforethought,  cause  the 
miscarriage  of  said  M.  N.,  it  not  being  then  and  there  neces- 
sary to  cause  such  miscarriage  for  the  preservation  of  the  life  of 
said  M.  N.  (the  said  W.  H.  B.  then  and  there  well  knowing 
that  the  use  of  said  instrument  as  aforesaid,  at  the  time  afore- 
said, in  the  manner  aforesaid,  would  produce  such  miscarriage); 
by  reason  whereof  the  said  M.  N.,  from  the  said  sixth  day  of 
May,  in  tlie  year  aforesaid,  until,  etc., did  languish,  and  languish- 
ing did  live;  on  which,  etc.,  in  the  year  aforesaid,  at  the  county 
aforesaid,  the  said  M.  K.  died." 

VOL.  I.— 9  129 


(157)  OFFENCES   AGAINST    THE    PERSON. 

In  the  fifth  count  it  was  charged,  that  the  said  W.  H.  B.  "  did 
then  and  there,  unlawfully  and  feloniously,  and  of  his  malice 
aforethought,  administer  to  one  M.  N.,  then  and  there  being  a 
woman  pregnant  with  child,  in  the  peace  of  the  people  then  and 
there  being,  a  certain  noxious  and  abortifacient  drug,  the  name 
of  which  said  noxious  and  abortifacient  drug  is  to  the  grand 
jurors  unknown,  with  intent  then  and  there  to  produce  the  mis- 
carriage of  the  said  M.  N., it  not  being  then 

and  there  necessary  to  administer  said  noxious  and  abortifacient 
drug,  the  name  of  which  is  to  the  grand  jurors  unknown,  for 
the  preservation  of  the  life  of  the  said  M.  ^.'\y) 

(157)  Murder  of  a  bastard  child.{z) 

That  A.  B.,  late  of,  etc.,  spinster,  on,  etc.,  being  big  with  a 
male  child,  on,  etc.,  at,  etc.,  by  the  providence  of  God,  did  bring 
forth  the  said  child  alive,(«)  of  the  body  of  her  the  said  A.  B., 
alone(6)  and  in  secret ;  which  said  male  child,  so  being  born 
alive,  by  the  laws  of  this  realm,  was  a  bastard ;  and  that  the 
said  A.  B.  afterwards,  to  wit,  on,  etc.,  as  soon  as  the  said  male 
bastard  child  was  born,  with  force  and  arms,  at,  etc.,  in  and 
upon  the  said  child,  feloniously,  wilfully,  and  of  her  malice 
aforethought,  did  make  an  assault ;  and  that  she  the  said  A.  B., 
with  both  her  liands  about  the  neck  of  him  the  said  child,  then 
and  there  fixed,  him  the  said  child,  then  and  there  feloniously, 
wilfully,  and  of  her  malice  aforethought,  did  choke  and  strangle, 
of  which  said  choking  and  strangling,  the  said  child  then  and 
there  instantly  died  ;  and  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  A.  B.,  him  the  said  male  bastard 

(y)  On  the  above  counts,  It  was  held  in  Illinois,  that  the  exception  in  the 
statute,  providing  that  "unless  the  same  were  done  as  necessary  for  the  preser- 
vation of  the  mother's  life,"  was  sufficiently  negatived.  Beasley  v.  People,  89 
111.  571. 

(z)   Stark.  C.  P.  405.     As  to  concealing  bastard  child,  see  infra,  183-4,  5. 

(a)  If  upon  view  of  the  child,  it  be  testified  by  one  witness,  by  apparent 
probabilities,  that  the  child  was  not  come  to  its  debitum  partus  temptts,  as  if  it 
have  no  hair  or  nails,  or  other  circumstances  ;  "  this"  (says  Lord  Hale)  "  I  have 
always  taken  to  be  a  proof  by  one  witness,  that  the  child  was  born  dead,  so  as 
to  leave  it  nevertheless  to  the  jury,  as  upon  a  common  law  evidence,  whether  she 
were  guilty  of  the  death  or  not."  Stark.  C.  P.  406.  According  to  Mr.  Starkie 
(w<  Slip.),  the  sex  is  material. 

(i)   These  words  do  not  appear  to  be  necessary.     lb. 

130 


HOMICIDE.  (157a) 

child,  ill  form  aforesaid,  feloniously,  wilfully,  and  of  her  malice 
aforethought,  did  kill  and  murder,  against  the  peace,  etc. 

(157a)  Same  under  Maine  statute. 

"  That  S.  M.  of  P.,  single  woman,  on,  etc.,  at,  etc.,  being  preg- 
nant with  a  male  child,  did  then  and  there  bring  forth  the  said 
male  child  alive  of  the  body  of  her  the  said  S.  M.,  alone  and  in 
secret,  which  said  male  child  being  so  born  alive  was  by  the 
laws  of  said  state  a  bastard,  and  that  afterwards,  to  wit,  on, 
etc.,  she  the  said  S.  M.,  with  force  and  arms,  at,  etc.,  in  and 
upon  the  said  male  child,  in  the  peace  of  said  state  then  and 
there  being,  feloniously,  wilfully,  and  of  her  malice  afore- 
thought, did  make  an  assault,  and  the  said  male  child,  she  the 
said  S.  M.,  did  then  and  there  feloniously,  wilfully,  and  of  her 
malice  aforethought,  kill  and  murder,  against  the  peace,"  etc. 

Second  count. 
"  And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do 
further  present,  that  said  S.  M.,  otherwise  known  by  the  name 
of  S.  W.,  single  woman,  on,  etc.,  at,  etc.,  with  force  and  arms,  in 
and  upon  an  infant  child  by  name  to  said  jurors  unknown,  in  the 
peace  of  said  state,  then  and  there  being,  feloniously,  wilfully, 
and  of  her  malice  aforethought,  did  make  an  assault,  and  the 
said  infant  child  then  and  there  feloniously,  wilfully,  and  of  her 
malice  aforethought,  did  kill  and  murder,  against  the  peace," 
etc.(c) 

(c)  State  u.  Morrissey,  70  Me.  401.  Peters,  J.  "The  first  count  is  the 
copy  of  a  form  provided  by  an  English  statute  (St.  14  and  15  Vict.  c.  100,  §  4), 
adopted  by  our  legislature  (Laws  18G5,  c.  329),  approved  and  sustained  by 
this  court  (State  v.  Verrill,  54  Me.  408),  with  this  difference,  that  in  the 
statutory  form  the  allegation  does  not  appear,  as  it  does  in  this  indictment, 
that  the  prisoner  'made  an  assault  upon  the  deceased.'  The  wisdom  of  the 
statute  we  have  no  doubt  of.  There  was  no  part  of  criminal  pleading  so 
difficult  as  to  safely  and  correctly  describe  in  an  indictment  the  means  "and 
manner  by  which  a  murder  was  conmiitted.  The  declaration  of  Sir  iMatthew 
Hale  seemed  to  be  justified  when  (2  Pleas  C.  193)  he  said,  that  'overgrown 
curiosity  and  nicety  has  become  the  disease  of  the  law,  and  more  oUcnders 
escape  by  the  over-easy  ear  given  to  exceptions  in  indictments  than  by  their  own 
innocence.'  Under  this  general  mode  of  alleging  the  crime,  a  court  can  order 
such  specification  of  details  and  particulars  as  may  be  proper,  and  allow  amend- 
ment or  alteration  thereof  without  imposing  hazards  upon  the  state  or  inflicting 
injury  upon  the  prisoner. 

"It  is  contended  that,  inasmuch  as  an  assault  is  alleged  in  this  indictment, 
not  in  accordance  with  the  statutory  form,  but  additional  thereto,  the  particular 
means  by  which  the  assault  was  committed  must  be  set  out.     It  is  claimed  that 

131 


(158)  OFFENCES    AGAINST    THE    PERSON. 

(158)   Throwing  a  bastard  child  in  a  jprivy.{d) 

That  C.  D.,  late  of  said  B.,  single  woman,  on  the  day  of 

now  last  past,  being  pregnant  with  a  female  child,  after- 
wards, to  wit,  on  the  same  day  of  in  the  year  afore- 
said, at  B,  aforesaid,  the  said  female  child,  alone  and  in  secret 
from  her  body  did  bring  forth  alive,  which  said  female  child, 
80  born  alive,  was,  by  the  laws  of  this  commonwealth,  a  bastard  ; 
and  that  the  said  C.  D.,  afterwards,  to  wit,  on  the  same 
day  of  in  the  year  aforesaid,  with  force  and  arms,  at  B. 
aforesaid,  in  the  county^  aforesaid,  in  and  upon  the  said  female 
bastard  child,  feloniously,  wilfully,  and  of  her  malice  afore- 
thought, did  make  an  assault;  and  that  the  said  C.  D.,  with 
both  her  hands,  the  said  female  bastard  child,  into  a  certain 
privy  there  situate,  wherein  was  a  great  quantity  of  human 
excrements  and  other  filth,  then  and  there  feloniously,  wilfully, 
and  of  her  malice  aforethought,  did  cast  and  throw;  by  reason 
of  which  said  casting  and  throwing  of  the  said  female  bastard 
child  into  the  said  privy,  by  her  the  said  C.  D.,  in  manner  as 

in  State  v.  Verrill  this  point  was  not  presented.  If  the  indictment  be  good 
without  such  unnecessary  allegation,  it  must  be  as  good  with  it.  The  pleader 
adding  words  to  what  was  complete  before,  only  recjuires  him  to  prove  all  that 
he  has  alleged.  He  is  required  to  prove  the  murder  to  have  been  committed  by 
force.  But  it  does  not  follow  because  he  has  alleged  more  than  is  needful,  that 
he  is  in  a  dilemma  of  not  having  alleged  enough.  He  is  not  required  to  spread 
out  his  general  averment  of  assault  into  particulars.  State  v.  Noble,  15  Maine, 
476;   State  v.  Smith,  32  Maine,  369. 

"  We  think  the  second  count  sufficient.  We  have  seen  no  precedent  of  indict- 
ment that  omits  an  allegation  of  the  sex  of  the  infant  child,  nor  has  any  case 
come  to  our  notice  which  decides  that  the  allegation  is  necessary.  Mr.  Wharton 
in  his  Criminal  Precedents  remarks  that  the  averment  is  necessary.  Bat  why 
necessary  ?  The  law  requires  a  person  to  be  described  by  his  name.  We  take 
it  that  if  an  infant  has  a  name,  there  would  be  no  more  occasion  for  averring  the 
sex  than  in  any  other  case.  But  it  is  laid  down  as  a  rule  that,  the  name  being 
unknown,  it  is  sufficient  to  aver  tlie  name  of  the  killed  or  injured  person  to  be 
unknown.  The  law  requires  that  an  indictment  shall  be  so  certain  as  to  the 
party  against  whom  the  offence  was  committed,  as  to  enable  the  prisoner  to  un- 
derstand who  the  party  is,  and  upon  what  charge  he  is  called  upon  to  answer,  as 
to  prevent  the  prisoner  from  being  put  in  jeopardy  a  second  time  for  the  same 
offence,  and  as  will  autliorize  the  court  to  give  the  appropriate  judgment  on  con- 
viction. What  would  it  practically  add  in  these  respects  to  the  rights  and  safety 
of  the  accused  in  this  case  to  have  the  sex  alleged  V  In  a  criminal  proceeding, 
the  allegation  of  name  is  enough,  though  there  may  be  more  than  one  person  of 
the  same  name  in  the  same  place.  State  v.  Grant,  22  Maine,  171.  It  is  enough 
to  allege  the  name  to  be  unknown,  although  the  grand  jury  might  have  ascer- 
tained what  the  name  was.     Com.  v.  Stoddard,  9  Allen,  280." 

(f/)  3  Chit.  C.  L.  767.  This  form,  and  that  which  follows  it,  are  given  by 
Mr.  Davis  as  conforming  to  the  Massachusetts  statute. 

132 


HOMICIDE.  (1-^9) 

aforesaid,  the  said  female  bastard  child,  in  the  said  privy,  with 
the  excrements  and  tilth  aforesaid,  was  then  and  there  choked 
and  suffocated ;  of  which  said  choking  and  suffocation  the  said 
female  bastard  child  then  and  there  instantly  died.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
C.  D.  the  said  female  bastard  child,  in  manner  and  form  afore- 
said, feloniously,  wilfullj',  and  of  her  malice  aforethought,  did 
kill  and  murder.     {Conclude  as  in  hook  1,  chapter  3.) 

(159)  Smothering  a  bastard  child  in  a  linen  cloth.{e) 

That  C.  D.,  of  said  B.,  single  woman,  on  the         day  of 
now  last  past,  at  B.  aforesaid,  in   the  county  aforesaid,  being 
pregnant  with  a  certain  female  child,  afterwards,  to  wit,  on  the 
same  day  of  in  the  year  aforesaid,  at  B.  aforesaid, 

the  said  female  child,  alone  and  secretly'  from  her  body  did 
bring  forth  alive,  which  said  female  cliild,  so  born  alive,  was, 
by  the  laws  of  this  commonwealth,  a  bastard;  and  that  the 
Baid  C.  D.  afterwards,  to  wit,  on  the  same  day  of  in 

the  year  aforesaid,  with  force  and  arms,  at  B.  aforesaid,  in  the 
county  aforesaid,  in  and  upon  the  said  female  bastard  child, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  did  make 
an  assault;  and  that  the  said  C.  D.,  with  both  her  hands,  the  said 
female  bastard  child,  in  a  certain  linen  cloth,  feloniously,  wil- 
fully, and  of  her  malice  aforethought,  did  put,  place,  fold,  and 
wrap  up;  by  means  of  which  said  putting,  placing,  folding, 
and  wrapping  up  of  the  said  female  bastard  child,  in  the  said 
linen  cloth,  by  her  the  said  C.  D.  as  aforesaid,  the  said  female 
bastard  child  was  then  and  there  choked,  suffocated,  and 
smothered;  of  which  said  choking,  suffocation,  and  smothering, 
the  said  female  bastard  cliild  then  and  there  instantly  died. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  C.  D.  the  said  female  bastard  child,  in  manner 
and  form  aforesaid,  feloniously,  wilfully,  and  of  her  malice 
aforethought,  did  kill  and  murder.  {Conclude  as  in  book  1,  chap- 
ter 8.) 

(e)  See  Davis's  Prec.  178. 

133 


(161)  OFFENCES    AGAINST    THE    PERSON. 

(160)  Murder  in  Pennsylvania,  of  a  bastard  child  hy  strangling. {f) 

That  U.  S.,  of  the  county  aforesaid,  spinster,  on,  etc,  being 
big  with  a  female  child,  the  same  day  and  year,  in  the  county 
aforesaid,  by  the  providence  of  God  did  bring  forth  the  said 
child  alive  of  the  body  of  her  the  said  U.,  alone  and  in  secret, 
which  said  female  child,  so  being  born  alive,  by  the  laws  of  this 
commonwealth  was  a  bastard;  and  that  the  said  U.,  not  having 
the  fear  of  God  before  her  eyes,  but  being  moved  and  seduced 
by  the  imstigation  of  the  devil,  afterwards,  to  wit,  on,  etc, 
as  soon  as  the  said  female  child  was  born,  with  force  and  arms, 
at  the  county  aforesaid,  in  and  upon  the  said  child,  in  the  peace 
of  God  and  this  commonwealth,  then  and  there  being,  feloni- 
ously, wilfully,  and  of  her  malice  aforethought,  did  make  an 
assault;  and  that  she  the  said  U.,  with  both  her  hands  about 
the  neck  of  her  the  said  child,  then  and  there  feloniously,  wil- 
full}^,  and  of  her  malice  aforethought,  did  choke  and  strangle; 
of  which  said  choking  and  strangling,  the  said  child  then  and 
there  instantly  died.  And  so  the  inquest,  etc,  do  say,  that  the 
said  U.  S.,  her  the  said  female  bastard  child,  in  manner  and 
form  aforesaid,  feloniously,  wilfully,  and  of  lier  malice  afore- 
thought, did  kill  and  murder,  contrary  to  the  form  of  the  act, 
etc,  and  against  the  peace  and  dignity,  etc 

(161)  Murder.     By  starving  apprentice.(g) 

Middlesex,  to  wit:  The  jurors  for  our  lady  the  queen,  upon 
their  oaths  present,  that  J.  S.,  late  of  the  parish  of  B.  in  the 
county  of  M.,  carpenter,  not  having  the  fear  of  God  before  his 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  and  of  his  malice  aforethought,  contriving  and  intending 
one  J.  N.,  then  being  an  apprentice  to  him  the  said  J.  S.,  felo- 

( /')  This  iiiflictment  was  sustained  after  a  conviction  in  Pennsylvania,  in  1807. 
See  for  other  forms  for  strangling,  supra,  123,  128. 

(g)  Arch.  C.  P.  405.  If  the  indictment  be  for  refusing  to  supply  the  appren- 
tice Avith  necessaries,  it  must  state  that  the  apprentice  was  of  tender  years,  un- 
able to  provide  for  himself.  R.  v.  Friend,  R.  &  R.  20 ;  R.  v.  Marriot,  8  C.  &  P. 
424.  Where  the  indictment  charges  an  imprisoning,  that  sufficiently  shows  the 
duty  to  supply  food ;  but  if  it  do  not,  then  it  must  allege  a  duty  in  the  defendant 
to  supply  the  deceased  with  food.  R.  v.  Edwards,  8  C.  &  P.  611.  See  as  to 
evidence,  Arch.  C.  P.  406  et  seq.  It  is  necessary,  also,  to  prove  that  J.  N.  was 
the  apprentice  of  J.  S.,  or  at  least  acted  as  such.    Arch.  C.  P.  513. 

134 


HOMICIDE.  (162) 

niously  to  starve,  kill,  and  murder,  on  the  third  day  of  August, 
in  the  ninth  year  of  the  reign  of  our  sovereign  lady  Victoria, 
and  on  divers  days  and  times  between  that  day  and  the  twenty- 
eighth  day  of  the  same  month,  in  the  same  year,  with  force 
and  arms,  at  the  parish  aforesaid,  in  the  county  aforesaid,  in 
and  upon  the  said  J.  ]S'.,his  apprentice  as  aforesaid,  in  the  peace 
of  God  and  of  our  said  lady  the  queen,  then  and  there  being, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  make 
divers  assaults;  and  that  the  said  J.  S.,  on  the  said  third  day 
of  August,  in  the  year  last  aforesaid,  at  the  parish  aforesaid,  in 
the  county  aforesaid,  him  the  said  J.  N.,  in  a  certain  room  in 
the  dwelling-house  of  him  the  said  J.  S.  there  situate,  feloni- 
ously, wilfully,  and  of  his  malice  aforethought,  did  secretly 
confine  and  imprison,  and  that  the  said  J.  S.,  from  the  said 
third  day  of  August,  in  the  year  last  aforesaid,  until  the  twenty- 
eighth  day  of  the  same  month,  in  the  same  year,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  feloniously,  wilfully,  and 
of  his  malice  aforethought,  did  neglect,  omit,  and  refuse  to 
give  and  administer,  and  to  permit  and  suifer  to  be  given  and 
administered  to  him  the  said  J.  N.,  sufficient  meat  and  drink 
necessary  for  the  sustenance,  support,  and  maintenance  of  the 
body  of  him  the  suid  J.  K. ;  by  means  of  which  said  confinement 
and  imprisonment,  and  also  of  such  neglecting  and  refusing  to 
give  and  administer,  and  to  permit  and  sufter  to  be  given  and 
administered  to  the  said  J.  N.,  such  meat  and  drink  as  were 
sufficient  and  necessary  for  the  sustenance,  support,  and  main- 
tenance of  the  body  of  him  the  said  J.  K.,  he  the  said  J.  IST., 
from  the  said  third  day  of  August,  in  the  year  last  aforesaid, 
until  the  twenty-eighth  day  of  the  same  month,  in  the  same 
year,  at  the  parish  aforesaid,  in  the  county  aforesaid  did  languish, 
etc.  etc. 

(162)  Manslaughter  by  neglect.  First  county  that  the  deceased  was 
the  apprentice  of  prisoner^  and  died  from  neglect  of  prisoner  to 
supply  him  with  food,  etc.{h) 

That  on  the  third  day  of  February,  one  thousand  eight  hun- 
dred and  forty-two,  at,  etc.,  one  R.  K.  (the  deceased)  was  then 

{]{)  R.  V.  Crumpton,  1  C.  &  M.  597.       See  for  same  when  death  did  not  ensue, 
infra,  914,  etc. 

135 


(163a)  OFFENCES    AGAINST    THE    PERSON. 

and  tliere  an  apprentice  to  one  J.  C.  (the  prisoner),  and  as  such 
apprentice  was  then  under  the  care  and  control  of  rhe  said  J.  C. ; 
and  that  it  then  and  there  became  and  was  the  duty  of  the  said 
J.  C,  during  the  time  aforesaid,  to  permit  and  sutler  the  said 
R.  K.  to  take  and  have  such  proper  exercise  as  was  necessary 
and  needful  for  the  bodily  health  of  the  said  R.  K.,  so  being 
such  apprentice  as  aforesaid  ;  and  it  then  and  there  became  and 
was  the  duty  of  the  said  J.  C.  to  find,  provide,  and  supply  the 
said  R.  K.,  being  such  apprentice  as  aforesaid,  with  proper  and 
necessary  nourishment,  medicine,  medical  care,  and  attention  ; 
and,  etc.  {concluding  by  averring  in  the  usual  form  that  the  deceased 
being  weak  in  body,  the  prisoner  struck  and  beat  him,  and 
forced,  obliged,  and  compelled  him  to  work  for  an  unreasonable 
time,  and  would  not  allow  him  to  take  proper  exercise  and  re- 
creation, and  neglected  to  supply  him  with  proper  nourishment 
and  medicine,  medical  care  and  attention,  by  means  whereof  he 
died),  etc. 

(163)  Second  count — charging  killing  by  overwork  and  beating. 

(The  second  count  stated  that  the  prisoner,  in  and  upon  the 
deceased,  so  being  such  apprentice  as  aforesaid,  and  under  the 
care  and  control  of  him  the  said  J.  C.  as  aforesaid,  and  so  being 
sick  and  weak  in  body  as  aforesaid,  in  the  peace  of  God  and  our 
said  lady  the  queen,  feloniously  did  make  an  assault;  and  that 
the  deceased  being  so  weak  in  body  as  aforesaid,  the  prisoner 
forced  him  to  work  for  certain  unreasonable  and  improper  times, 
and  beat  him,  b\'  means  whereof  he  died.) 

(163a)  Homicide  of  wife  caused  by  neglect  to  provide  her  with 

necessaries. 

The  jurors  for  said  state  upon  their  oath  present,  that  H.  S., 
of  B.,  in  said  county  of  Y.,  laborer,  on,  etc.,  at,  etc.,  being  then 
and  there  the  husband  of  one  L.  A.  S.  his  wife,  and  being  then 
and  there  under  the  legal  duty  to  provide  for  his  said  wife 
necessary  clothing,  shelter,  and  protection  from  the  frost,  cold, 
and  inclemency  of  the  weather,  and  then  and  there  having  the 
means  to  provide  the  same,  and  she,  said  L.  A.  S.,  being  then 
and  there  weak,  feeble,  destitute,  and  infirm,  and  unable  to  go 
abroad,  did  then  and  there  feloniously  and  wilfully  neglect  and 
136 


HOMICIDE.  (164) 

refuse  to  provide  necessary  clothing,  shelter,  and  protection  from 
the  frost,  cold,  and  inclemency  of  the  weather  for  his  said  wife, 
whereby  her  health  was  greatly  injured;  and  he  the  said  H.  S., 
afterward,  to  wit,  on  the  next  succeeding  day  and  on  every  day 
between  the  said,  etc.,  day  of,  etc.,  and  the,  etc.,  day  of,  etc.,  then 
next  ensuing,  did  there  feloniously  and  wilfully  continue  to 
neglect  and  refuse  to  provide  her,  the  said  L.  A.  S.,  with  neces- 
sary clothing,  shelter,  and  protection  from  the  frost,  cold,  and 
inclemenc}^  of  the  weather;  the  said  H.  S.  being  there  on  all  said 
days  and  times  her  husband  as  aforesaid,  and  having  the  means 
to  provide  the  same  as  aforesaid,  and,  under  the  legal  duty  to 
provide  the  same  as  aforesaid,  and  she,  the  said  L.  A.  S.,  having 
no  means  to  provide  the  same  as  aforesaid,  and  being  weak, 
feeble,  destitute,  infirm,  and  unable  to  go  abroad  as  aforesaid; 
by  reason  whereof  the  said  L.  A.  S.  there  on  all  the  days  and 
times  before  mentioned,  uiitil  the,  etc.,  day  of,  etc.,  in  the  year 
aforesaid,  sickened  and  languished  with  a  mortal  sickness  and 
feebleness  of  body  so  as  aforesaid  created  and  produced  by  the 
said  H.  S.,  until  the,  etc.,  day  of,  etc.,  now  last  past,  on  which 
said  last  mentioned  day,  at  said,  etc.,  she  the  said  L.  A.  S.,  there 
of  said  mortal  sickness  and  feebleness  of  body,  died.  And  so 
the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  H.  S.,  her,  the  said  L.  A.  S.,  in  manner  and  by  the  means 
aforesaid,  feloniously  did  kill  and  slay,  against  the  peace,  etc.(z) 

(164)  Manslaughter.  Against  a  woman  for  exposing  her  infant  child 
so  as  to  produce  death.{j) 

{Third  count.)  That  A.  W.,  of,  etc.,  on,  etc.,  in  the  year  afore- 
said, with  force  and  arms,  at  the  parish  aforesaid,  in  the  county 

(?)  It  was  held  in  Maine  that  the  above  indictment  "  is  sufficient  without  other 
or  more  precise  or  formal  allegations  ol"  evil  or  wrongful  intent  on  the  part  of  the 
defendant  or  of  his  knowledge  of  the  effect  wliich  his  negligence  was  producing." 
State  V.  Smith,  65  Me.  257.     For  neglect  to  give  food  to  child,  see  infra,  263cr. 

[j)  R.  V.  Walters,  1  C.  &  M.  165.  The  principle  determined  in  this  case  was, 
that  if  a  person  do  any  act  towards  another,  who  is  helpless,  whicli  must  neces- 
sarily lead  to  the  death  of  that  other,  the  crime  amounts  to  murder ;  but  if  the 
circumstances  are  such  that  the  person  would  not  have  been  aware  tl)at  tlie  result 
would  be  death,  that  would  reduce  the  crime  to  manslaughter,  ])rovi(led  that  the 
death  was  occasioned  by  an  unlawful  act,  but  not  such  an  act  as  showed  a  mali- 
cious mind.  It  was  said  that  if  tlie  defendant  had  left  her  child,  a  young  infant, 
at  a  gentleman's  door,  a  place  where  it  was  likely  to  be  found  and  taken  care  of, 
and  the  child  died,  it  would  be  manslaughter  only  ;  but  if  tlie  child  wei-e  left  in  a 

137 


(164)  OFFENCES    AGAINST    THE    PERSON. 

aforesaid,  in  and  upon  a  certain  female  child  then  and  there  born 
of  the  body  of  the  said  A.  "W.,  whose  name  is  to  the  jurors  afore- 
said  unknown,  feloniously,  wilfully,  and  of  her  malice  afore- 
thouo^ht,  did  make  an  assault.     And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  it  was  the  duty  of 
the  said  A.  W.  then  and  there  to  provide  proper  and  sufficient 
clothes,  covering,  and  protection  for  the  body  of  the  said  last  men- 
tioned female  child,  the  said  last  mentioned  female  child  being 
then  and  there  unable  to  provide  for  and  take  care  of  herself; 
and  that  the  said  A.  W.,  then  and  tliere,  contrary  to  her  duty  in 
that  behalf,  feloniously,  wilfully,  and  of  her  malice  aforethought, 
with  both  her  hands,  did  put  and  place  the  said  last  mentioned 
female  child  in  a  certain  common  and  public  highway  and  open 
place  there,  and  then  and  there  did  feloniously,  wilfully,  and  of 
her  malice  aforethought,  desert  and  leave  the  said  last  mentioned 
female  child  there  exposed  to  the  inclemency  of  the  weather, 
without  sufficient  clothes,  covering,  shelter  and  protection  for 
the  body  of  the  said  last  mentioned  female  child.     By  means  of 
which  said  several  premises  in  this  count  mentioned,  the  said 
last  mentioned  female  child  became  and  was  mortally  sick,  weak, 
and  disordered  in  her  body  ;  of  which  said  mortal  sickness,  weak- 
ness, and  disorder  aforesaid,  the  said  last  mentioned  female  child, 
on  and  from  the  said  thirteenth  day  of  A[)ril,  in  the  year  afore- 
said, until  the  fourteenth  day  of  the  same  month,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  did  languish,  and  languishing 
did  live,  and  then  and  there,  to  wit,  on  the  said  fourteenth  day 
of  April,  in  the  year  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  did  die.     And   so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  A.  W.,  the  said  last 
mentioned   female  child,  in    manner  and   form  last  aforesaid, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  did  kill 
and  murder,  against  the  peace  of  our  lady  the  queen,  her  crown 
and  dignity. 

Fourth  count. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
remote  place,  where  it  was  not  likely  to  be  found,  e.  g.,  on  a  barren  heath,  and 
the  death  of  the  child  ensued,  it  would  be  murder.     The  defendant  was  con- 
victed of  manslaugliter.     See  Wh.  Cr.  L.  8th  ed.  §§  156,  358,  359,  447. 

188 


HOMICIDE,  (164 

ther  present,  that  the  said  A.  W.  afterwards,  to  wit,  on  the  day 
and  year  first  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  being  big  with  a  certain  female  child,  the  same  female 
child  alone  and  secretly  from  her  body  did  then  and  there  bring 
forth  alive.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  it  then  and  there  became  and  was 
the  duty  of  the  said  A  W.,  as  the  mother  of  the  same  child  (to 
fasten,  tie,  and  secure  the  navel-string  of  the  body  of  the  same 
child,  and  to  provide  and  procure  such  clothing,  covering,  and 
shelter  for  the  body  of  the  same  child  as  were  then  and  there 
necessary  and  sufficient  to  protect  and  defend  the  same  child 
from  the  cold  and  inclemency  of  the  weather,  and  also  to  pro- 
cure for  and  give  and  administer  to  the  same  child  such  milk 
and  food  as  was  then  and  there  necessary  and  sufficient  for  the 
support  and  maintenance  of  said  cliild).  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  the  said 
A.  W.,  not  regarding  her  duty  in  that  behalf,  but  being  moved 
and  seduced  by  the  instigations  of  the  devil,  on  the  day  and  year 
first  aforesaid,  with  force  and  arms,  at  the  parish  aforesaid,  in 
the  county  aforesaid,  in  and  upon  the  same  child  not  named,  in 
the  peace  of  God  and  our  said  lady  the  queen,  then  and  there 
being,  feloniously,  wilfully,  and  of  her  malice  aforethought,  did 
make  an  assault ;  and  that  the  said  A.  W.  the  same  child  into 
both  her  hands  feloniously,  wilfully,  and  of  her  malice  afore- 
thought, did  then  and  there  take,  and  that  the  said  A.  W.  the 
same  child  feloniously,  wilfully,  and  of  her  malice  aforethought, 
with  both  her  hands,  did  then  and  there  put  atid  place  in  a  cer- 
tain road  there  situate,  and  the  same  child  in  the  said  road,  then 
and  there,  feloniously,  wilfully,  and  of  her  malice  aforethought, 
did  expose,  leave,  and  abandon,  naked  and  without  any  cloth- 
ing, covering,  or  shelter  whatever  to  protect  the  body  of  the 
same  child  from  the  cold  and  inclemency  of  the  weather.f 
And  that  the  said  A.  W.  did  then  and  there  feloniously,  wil- 
fully, and  of  her  malice  aforethought,  wholly  neglect,  omit,  and 
refuse  to  tie,  fasten,  or  in  any  way  secure  the  navel-string  of  the 
body  of  the  same  child,  and  that  the  said  A.  W.  did  then  and 
there  feloniously,  wilfully,  and  of  her  malice  aforethought, 
wholly  neglect,  omit,  and  refuse  to  provide  and  procure  any 
clothing,  covering,  or  shelter  whatsoever   for  the  same   child  ; 

159 


(164)  OFFENCES    AGAINST    THE    PERSON. 

and  that  the  said  A.  W.  did  then  and  there  feloniously,  wil- 
fully, and  of  her  malice  aforethought,  wholly  neglect,  omit,  and 
refuse  to  procure  for  or  to  give  or  administer  to  the  same  child 
milk  or  other  food  whatsoever,  by  means  of  which  said  last 
mentioned  exposure,  leaving,  and  abandonment  of  the  same 
child,  and  also  by  the  omitting  and  refusing  to  tie,  fasten,  and 
secure  the  navel-string  of  the  body  of  the  same  child  as  afore- 
said, and  to  i)rovide  and  procure  clothing,  covering,  and  shelter 
for  the  body  of  the  same  child  as  last  aforesaid,  and  to  procure 
for  and  give  and  administer  to  the  same  child  milk  and  food  as 
last  aforesaid,!  the  same  child,  from  the  time  of  its  birth  afore- 
said, on  the  day  and  year  first  aforesaid,  until  the  fourteenth  day 
of  the  same  month,  at  the  parish  aforesaid,  in  the  county  afore- 
said, did  languish,  and  languishing  did  live  ;  on  which  said  four- 
teenth day  of  April,  in  the  year  aforesaid,  the  same  child,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  of  such  leaving,  aban- 
donment,  and  exposure,  and  of  such  wilful  omission,  neglect, 
and  refusal  as  in  this  count  mentioned,  did  then  and  there  die. 
And  so  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say, 
that  tlie  said  A.  W.  the  same  child  in  manner  and  form  last 
aforesaid,  feloniously,  wilfully,  and  of  her  malice  aforethought, 
did  kill  and  murder,  against  the  peace  of  our  lady  the  queen, 
her  crown  and  dignity. 

Fifth  count. 

(Exactly  similar  to  the  fourth,  but  instead  of  the  joarts  between  (  ), 
inserting  the  folloiuing):  To  protect  and  defend  the  same  child 
from  the  cold  and  inclemency  of  the  weather,  and  to  provide 
and  procure  such  clothing,  covering,  and  shelter  for  the  body 
of  the  said  child  as  was  then  and  there  necessary  and  sufficient 
to  protect  and  defend  the  same  child  from  the  cold  and  inclem- 
ency of  the  weather.*  {And  instead  of  the  allegation  between  ft, 
inserting  the  following) :  And  that  the  said  A.  W.  did  then  and 
there  feloniously,  wilfully,  and  of  her  malice  aforethought, 
wholly  neglect,  omit,  and  refuse  to  i)rotect  and  defend  the  same 
child  from  the  cold  and  inclemency  of  the  weather,  or  to  pro- 
vide or  procure  any  clothing,  covering,  or  shelter  whatsoever 
for  the  same  child,**  by  means  of  which  said  last  mentioned 
exposure,  leaving,  and  abandonment  of  the  same  child,  and  also 
140 


HOMICIDE.  (165) 

neglecting,  omitting,  and  refusing  to  protect  and  defend  the 
same  child  from  the  cold  and  inclemency  of  the  weather,  and 
to  provide  and  procure  clothing  and  shelter  for  the  body  of  the 
same  child,  as  in  this  count  mentioned.*** 

Sixth  count. 

{Exactly  similar  to  the  fifth  coimt,  except  that  in  stating  the  duty 
of  the  'prisoner,  the  following  words  were  added  at  the  *):  And  also 
to  procure  for,  and  give  and  administer  to  the  same  child,  such 
milk  and  food  as  was  then  and  there  necessary  and  sufficient 
for  the  support  and  maintenance  of  the  same  child.  [And  in 
stating  the  cause  of  the  death,  the  following  allegation  was  inserted 
at  ihe^*):  And  that  the  said  A.  W.  did  then  and  there  feloni- 
ously, wilfully,  and  of  her  malice  aforethought,  wholly  neglect, 
omit,  and  refuse  to  procure  for,  give,  or  administer  to  the  same 
child  any  milk  or  other  food  whatsoever.  {And  at  the  ***  the 
following  ivas  insei-ted):  And  to  procure  for,  and  to  give  and 
administer  to  the  same  child,  milk  and  food  as  last  aforesaid. 

(165)  Manslaughter — by  forcing  an  aged  woman  out  of  her  house  in 
the  night,  ducking,  taning,  feathering,  and  whipping  her. 

That  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  and  K  L.,  all  late  of 
the  county  aforesaid,  etc.,  at  the  county  of  Montgomery  afore- 
said, with  force  and  arms,  in  and  upon  the  body  of  one  M.  N"., 
then  and  there  being,  unlawfully  did  make  an  assault,  and  that 
they,  the  said  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  and  K.  L.,  did  then 
and  there  unlawfully  and  forcibly  take  the  said  M.  N.  from  the 
dwelling-house  wherein  she  was  then  and  there  residing,  out 
into  the  open  air,  and  that  they  did  then  and  there  unlawfully 
carry  and  force  along  the  said  M.  JST.  a  great  distance,  to  wit, 
the  distance  of  two  hundred  yards,  and  that  they  did  then  and 
there  unlawfully  throw,  cast,  force,  push,  and  dip  the  said  M.  l!^. 
into  the  Great  Miami  River,  then  and  there  flowing,  wherein 
there  was  a  great  quantity  of  water,  whereby  (this  being  in  the 
night  season  of  the  said  day,  and  the  said  M.  N.  being  then  and 
there  an  old  woman,  and  just  taken  from  her  dwelling-house  as 
aforesaid)  the  said  M.  IS[.  was  then  and  there  thoroughly  chilled, 
and  that  they  did  then  and  there  unlawfully  cast,  throw,  and 
knock  the  said  M.  K.  down  unto  and  upon  the  ground,  with 

141 


(166)  OFFENCES    AGAINST    THE    PERSON. 

great  force  and  violence,  and  that  they  did  then  and  there  un- 
lawfully drag  the  said  M.  N.  along  and  upon  the  ground  a  great 
distance,  to  wit,  the  distance  of  one  hundred  yards,  and  that  they 
did  then  and  there  unlawfully  force  and  spread  in  and  upon  the 
body  of  the  said  M.  IST.  a  great  quantity  of  tar,  and  a  great  quan- 
tity of  feathers,  and  that  they  did  then  and  there  unlawfully 
strike,  beat,  whip,  and  kick  the  said  M.  N.  with  their  hands 
and  feet,  and  with  certain  switches,  which  they  then  and  there 
in  their  hands  had  and  held,  in  and  upon  the  head,  neck,  breast, 
back,  belly,  sides,  legs,  and  other  parts  of  the  body  of  the  said 
M.  IST.,  then  and  there  giving  to  the  said  M.  IST.,  by  the  forcibly 
taking  the  said  M.  N.  from  the  said  dwelling-house  as  aforesaid, 
and  by  the  casting  and  throwing  and  knocking  the  said  M.  'N. 
down  unto  and  upon  the  ground  as  aforesaid,  and  by  the  drag- 
ging her  along  and  upon  the  ground  as  aforesaid,  and  by  the 
pouring  and  spreading  the  said  tar  and  the  said  feathers  in  and 
upon  the  body  of  the  said  M.  N.  as  aforesaid,  several  mortal 
injuries  in  and  upon  the  head,  neck,  breast,  back,  belly,  sides, 
legs,  and  other  parts  of  the  body  of  the  said  M.  N.,  of  which 
said  mortal  injuries  the  said  M.  IST.,  from  the  said 
to  the  in  the  county  aforesaid,  did  languish, 

and  languishng  did  live;  on  which  said 

at  the  county  aforesaid,  the  said  M.  !N".,  of  the  mortal  injuries 
aforesaid,  died:  And  so  the  jurors  aforesaid,  on  their  oaths 
aforesaid,  do  say,  that  the  said  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J., 
and  K.  L.,  in  the  manner  and  by  the  means  aforesaid,  her  the 
said  M.  iST.  unlawfully  did  kill  and  slay,  contrary,  etc.,  and 
against,  etc.(Z:) 

(166)  Manslaughter — against  the  keeper  of  an  asylum  for  pauper 
children^  for  not  supplying  one  of  them  with  proper  food  and 
lodging^  whereby  the  child  died.{l) 

The  jurors,  etc.,  upon  their  oath  present,  that  heretofore  and 
during  all  the  days  and  times  hereinafter  in  this  count  men- 
tioned, James  Andrews  was  a  poor,  indigent,  and  destitute 
infant  child  of  very  tender  age,  to  wit,  of  the  age  of  six  years, 

(Jc)  Warren,  C.  L.  11. 

(l)  3  Cox,  C.  C.  Appendix,  p.  Ixxv.  For  starving  an  apprentice,  see  supra, 
161.     Wh.  Cr.  L.  8th  ed.  §§  1563  et  seq. 

142 


HOMICIDE.  (166) 

and  unable  to  provide  himself  with  necessary  food,  shelter,  or 
clothing,  or  any  of  the  necessaries  of  life  ;  and  that  heretofore, 
to  wit,  on  the  twenty-eighth  day  of  October,  in  the  year  of  our 
Lord,  etc.,  Peter  Bartholomew  Drouet,  late  of  the  parish  of  Toot- 
ing, in  the  county  of  Surrey,  and  Avithin  the  jurisdiction  of  the 
said  central  criminal  court,  gentleman,  being  the  keeper  of  a 
certain  asylum  for  the  reception  of  poor,  destitute,  and  indigent 
children,  at  the  parish  aforesaid,  and  within  the  jurisdiction  of 
the  said  court,  to  wit,  called  and  known  by  the  name  of  Surrey 
Hall,  at  the  request  and  with  the  approbation  of  the  guardians 
of  the  poor  of  the  Holborn  Union,  in  the  county  of  Middlesex, 
who  then  had  the  charge  and  custody  of  the  said  J.  A.,  and 
then  under  the  laws  of  this  realm  relating  to  the  relief  of  the 
poor,  were  charged  with  the  relief  and  support  of  the  said  J.  A., 
within  their  said  union,  at  his  request  received,  and  had  the 
said  J.  A.  in  the  charge  and  custody  of  the  said  P.  B.  D.,  by 
him  to  be  provided  with  good  and  proper  abode,  shelter,  and 
lodging,  and  all  the  necessary  sleeping  accommodation,  meat, 
drink,  food,  and  clothing,  for  and  on  behalf  of  the  said  guar- 
dians, for  reward  to  the  said  P.  B.  D.  in  that  behalf.  And  the 
jurors  further  present,  that  thenceforth  and  on  and  from  the 
said  twenty-eighth  day  of  October,  in  the  year  of  our  Lord 
and  upon  and  during  all  the  days  and  times  between  that  day 
and  the  fifth  day  of  January,  in  the  year  of  our  Lord  the 

said  P.  B.  D.  kept  and  detained  the  said  J.  A.,  and  the  said  J. 
A.  continued  and  remained,  and  was  under  the  charge,  care, 
dominion,  government,  custody,  and  control  of  the  said  P.  B.  D. 
in  the  said  asylum,  to  wit,  at  the  parish  aforesaid,  and  within 
the  jurisdiction  of  the  said  central  criminal  court,  and  the  said 
J.  A.  was,  during  all  the  several  days  and  times  aforesaid,  wholly 
subject  to  and  dependent  upon  the  said  P.  B.  D.  for  such  abode, 
shelter,  lodging,  sleeping  accommodation,  meat,  drink,  food,  and 
clothing  as  aforesaid,  and  was  unable  to  obtain  the  same,  or  any 
of  them,  from  any  other  source,  or  from  any  other  person  or  per- 
sons whomsoever.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  thereupon,  to  wit,  upon  the 
said  twenty-eighth  day  of  October,  in  the  year  of  our  Lord 
and  thenceforth  during  all  the  days  and  times  in  this  count 
aforesaid,  it  became  and  was  the  duty  of  the  said  P.  B.  D.  to 

143 


(166)  OFFENCES    AGAINST    THE    PERSON. 

furnish,  provide,  and  supply  the  said  J.  A.  with  good  and  whole- 
some food,  meat,  and  drink,  in  such  sufficient  quantities  as 
should  be  necessary  for  the  healthy  support,  nourishment,  and 
sustenance  of  the  body  of  the  said  J.  A. ;  and  also  to  furnish, 
provide,  and  supply  the  said  J.  A.  with  such  proper,  suitable, 
and  wholesome  lodging,  shelter,  and  abode,  as  should,  upon  and 
during  all  the  several  days  and  times  aforesaid,  be  needful  for 
the  said  J.  A.,  and  be  necessary  to  preserve  him  in  a  good  and 
sound  state  of  bodily  health,  and  free  from  sickness,  weakness, 
and  disorder;  and  also  during  all  the  days  and  times  aforesaid, 
to  furnish,  provide,  and  supply  the  said  J.  A.  with  such  healthy, 
wholesome,  and  proper  bedding  and  sleeping  accommodation  as 
should  be  necessary  to  enable  the  said  J.  A.  to  enjoy  a  due  and 
proper  quantity  of  wholesome,  healthy,  and  refreshing  rest  and 
sleep ;  and  also  to  furnish,  provide,  and  supply  the  said  J.  A. 
with  a  sufficient  quantity  of  warm  and  wholesome  clothing,  for 
the  protection  of  the  body  of  the  said  J.  A.  from  the  cold,  damp, 
and  inclemency  of  the  weather;  all  of  wliich  said  several  prem- 
ises the  said  P.  B.  D.,  upon  and  during  all  the  several  days  and 
times  in  this  count  mentioned,  well  knew.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  the 
said  P.  B.  D.,  on  the  several  days  aforesaid,  with  force  and  arms, 
at  the  parish  of  Tooting  aforesaid,  and  within  the  jurisdiction 
of  the  said  central  criminal  court,  in  and  upon  the  said  J.  A., 
feloniously  did  make  divers  assaults ;  and  that  the  said  P.  B. 
D.,  not  regarding  his  duty  as  aforesaid,  upon  all  and  every  the 
days  aforesaid,  and  during  all  the  said  times,  whilst  the  said  J. 

A.  remained  and  continued  under  the  care,  charge,  dominion, 
government,  custody,  and  control  of  the  said  P.  B.  D.  in  the 
said  asylum,  at  the  parish  of  Tooting  aforesaid,  and  within  the 
juri^^diction  of  the  said  central  criminal  court,  feloniously  did 
omit,  neglect,  and  refuse  to  furnish,  provide,  or  supply  the  said 
J.  A.  with  good  and  wholesome  food,  meat,  and  drink,  in  such 
sufficient  quantities  as  were  upon  and  during  all  and  every  of 
those  days  respectively,  and  during  all  the  time  aforesaid,  neces- 
sary for  the  healthy  support,  nourishment,  and  sustenance  of 
the  body  of  the  said  J.  A.,  according  to  the  duty  of  the  said  P. 

B.  D.  in  that  behalf,  and  on  the  contrary  thereof,  upon  and  dur- 
ing all  and  every  the  days  aforesaid,  and  during  all  the  time 

144 


HOMICIDE.  (166) 

aforesaid,  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  central  criminal  court,  feloniously,  and 
without  any  lawful  excuse  whatsoever,  did  furnish,  provide,  and 
supply  the  said  J.  A.  with  food,  meat,  and  drink  in  very  insuffi- 
cient and  inadequate  quantities,  and  in  no  sufficient  and  ade- 
quate quantity  or  quantities  whatsoever,  for  such  support,  nour- 
ishment, and  sustenance  of  the  body  of  the  said  J.  A.  as  afore- 
said;  and  that  the  said   P.  B.  D.,  not  regarding  his  dutj^  as 
aforesaid,  upon  and  during  all  and  every  of  the  days  aforesaid, 
and  during  all  the  said  time  whilst  the  said  J.  A.  remained  and 
continued    under    such   charge,   care,   dominion,   government, 
custody,  and  control  as  aforesaid,  in  the  said  asylum,  at  the 
parish  of  Tooting  aforesaid,  and  within  the  jurisdiction  of  the 
said  central  criminal  court,  feloniously  did  omit,  neglect,  and 
refuse  to  furnish,  provide,  or  supply  the  said  J.  A.  with  such 
proper,  suitable,  and  wholesome  lodging,  shelter,  and  abode  as 
was,  upon  and  during  all  the  several  days  aforesaid,  and  during 
all  the  time  aforesaid,  needful  for  the  said  J.  A.,  and  necessary 
to  preserve  him  in  a  good  and  sound  state  of  bodily  health,  and 
free  from  sickness,  weakness,  and  disorder,  and  as,  according  to 
the  said  duty  of  the  said  P.  B.  D.,  he  ought  to  have  done,  and 
on  the  contrary  thereof,  the  said  P.  B.  D.,at  the  parish  of  Toot- 
ing aforesaid,  and  within  the  jurisdiction  of  the  said  central 
criminal  court,  upon  and  during  all  the  several  days  aforesaid, 
and  during  all  the  time  aforesaid,  knowingly,  feloniously,  and 
contrary  to  his  duty  in  that  behalf,  did  keep  the  said  J.  A.,  and 
force,  compel,  and  oblige  the  said  J.  A.  to  be  and  remain  in 
divers  ill- ventilated  and  unwholesome  rooms,  inhabited  by  and 
overcrowded  with  an  excessive  and  injurious  number  of  other 
persons  in  the  said  asylum,  and  feloniously  did  expose  the  said 
J.  A.,  and  force  and  compel  the  said  J.  A.  to  be  and  remain 
exposed  for  divers  long  spaces  of  time,  on  each  of  the  days  afore- 
said, to  divers  fetid,  injurious,  noxious,  unwholesome,  and  pesti- 
lential exhalations  and  vapors  in,  near  to,  around,  and  about 
the  said  as34um  then  arising  and  existing;  and  that  the  said 
P.  B.  D.,  not  regarding  his  duty  as  aforesaid,  upon  and  during 
all  and  every  the  days  aforesaid,  and  during  all  the  said  time 
whilst  the  said  J.  A.  remained  and  continued  under  such  charge, 
care,  dominion,  government,  custody,  and  control  as  aforesaid, 
VOL.  I.— 10  145 


(166)  OFFENCES    AGAINST    THE    PERSON. 

in  the  said  asylum,  at  the  parish  of  Tootino;  aforesaid,  and 
within  the  jurisdiction  of  the  said  central  criminal  court, 
feloniously  did  omit,  neglect,  and  refuse  to  furnish,  provide,  and 
supply  the  said  J.  A.  with  such  healthy,  wholesome,  and  proper 
bedding  and  sleeping  accommodation  as  was  necessary  to  enable 
the  said  J.  A.,  on  all  and  every  the  said  several  days  aforesaid, 
to  enjoy  a  due  quantity  of  wholesome,  healthy,  and  refreshing 
rest  and  sleep,  and  as,  according  to  the  duty  of  the  said  P.  B. 
D.,  he  ought  to  have  done,  and  on  the  contrary  thereof,  upon 
divers  nights  during  all  the  time  aforesaid,  at  the  parish  of 
Tooting  aforesaid,  and  within  the  jurisdiction  of  the  said  cen- 
tral criminal  court,  feloniously  and  knowingly  did  force,  oblige, 
and  compel  the  said  J.  A.  to  lie  and  be  in  a  certain  ill-ventilated 
and  unwholesome  room,  then  overcrowded  with  an  excessive 
and  injurious  number  of  other  persons  in  the  said  asylum,  and 
to  be  and  remain,  for  divers  long  spaces  of  time  on  each  of  the 
nights  aforesaid,  in  divers  fetid,  injurious,  noxious,  unwhole- 
some, and  pestilential  vapors  and  exhalations  in  the  said  room 
arising  and  existing,  and  also  to  lie  and  be  in  a  certain  small 
bed  in  the  said  room,  together  with  two  other  persons,  to  wit, 
Joseph  Andrews  and  William  Derbyshire,  whereby  the  said 
bed  became  and  was,  on  all  and  every  of  the  said  nights,  ren- 
dered unwholesome  and  injurious  to  the  said  J.  A.,  and  totally 
unfit  for  and  incapable  of  affording  to  the  said  J.  A.  such 
wholesome,  healthy,  and  refreshing  sleep  as  aforesaid  ;  and  that 
the  said  P.  B.  D.,  not  regarding  his  duty  as  aforesaid,  upon  and 
during  all  and  every  the  days  aforesaid,  and  during  all  the  said 
time  whilst  the  said  J.  A.  remained  and  continued  under  such 
charge,  care,  dominion,  government,  custody,  and  control  as 
aforesaid,  in  the  said  asylum,  at  the  parish  of  Tooting  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  feloniously  did 
omit,  neglect,  and  refuse  to  furnish,  provide,  or  supply  the  said 
J.  A.  with  any  sufficient  quantity  of  warm  and  wholesome 
clothing,  or  with  a  sufficient  quantity  of  any  clothing  whatever 
for  the  protection  of  the  body  of  the  said  J.  A.  from  the  cold, 
damp,  and  inclemency  of  the  weather,  and  as,  according  to  the 
duty  of  the  said  P.  B.  D.,  he  ought  to  have  done,  and  on  the 
contrary  thereof,  during  divers  cold,  wet,  and  inclement  days 
during  the  time  aforesaid,  at  the  parish  aforesaid,  and  within 
146 


HOMICIDE.  (166) 

the  jurisdiction  of  the  said  central  criminal  court,  feloniously, 
and  contrary  to  his  duty  in  that  behalf,  left  the  said  J.  A.  ex- 
posed, and  then  and  there  suffered  and  permitted  the  said  J.  A. 
to  remain  exposed,  for  divers  long  spaces  of  time,  to  the  cold, 
damp,  and  inclemency  of  the  weather,  etc.,  without  any  suffi- 
cient or  adequate  quantity  of  clothing  or  covering  for  his  body, 
and  with  a  totally  inadequate  and  insufficient  quantity  of  cloth- 
ing and  covering  for  the  body  of  the  said  J.  A.,  to  protect  him 
from  the  severity  and  inclemency  of  the  weather.  By  reason 
and  means  of  which  said  several  felonious  acts,  defaults,  and 
omissions  of  the  said  P.  B.  D.  hereinbefore  alleged,  the  said  J. 

A.  afterwards,  on  the  said  hfth  day  of  January,  in  the  year  of 
our  Lord  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  became  and  was,  and  the  said  P. 

B.  D.  did  thereby  then  and  there  feloniously  cause  and  occasion 
the  said  J.  A.  to  become  and  be  mortally  sick,  weak,  diseased, 
disordered,  and  distempered  in  his  body.  Of  which  said  mor- 
tal sickness,  weakness,  disease,  disorder,  and  distemper,  the  said 
J.  A.,  on  and  from  the  said  last  mentioned  day  in  the  year  of 
our  Lord  until  the  sixth  day  of  January  in  the  same  year, 
as  well  at  the  parish  aforesaid  and  within  the  jurisdiction  of  the 
said  court,  as  at  the  parish  of  Saint  Pancras,  in  the  county  of 
Middlesex,  and  within  the  jurisdiction  of  the  said  court,  did 
languish,  and  languishing  did  live,  and  then  on  the  said  last 
mentioned  day,  at  the  parish  last  aforesaid,  in  the  county  last 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  of  the 
mortal  sickness,  weakness,  disease,  disorder,  and  distemper  afore- 
said, did  die.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  P.  B.  D.,  the  said  J.  A.,  in  man- 
ner and  form  aforesaid,  feloniously  did  kill  and  slay,  against 
the  peace,  etc. 

Second  count. 

{The  same  as  the  Jirst^  except  that  it  charged  acts  of  omission  only.) 

Third  count. 
{The  same  as  thejirst,  charging  acts  of  commission  only.) 

Fourth  count. 
The  jurors  aforesaid,  upon   their  oath    aforesaid,  do  further 
present,  that  heretofore  and  during  all  the  days  and  times  here- 

147 


(166)  OFFENCES    AGAINST    THE    PERSON. 

inafter  in  this  count  mentioned,  J.  A.,  hereinafter  in  this  count 
mentioned,  was  a  poor,  indigent,  and  destitute  infant  child  of  a 
tender  age,  to  wit,  of  the  tige  of  six  years,  and  unable  to  pro- 
vide himself  with  necessary  food,  shelter,  or  clothing,  or  any  of 
the  necessaries  of  life,  and  that  heretofore,  to  wit,  on  the  said 
twenty-eighth  day  of  October,  in  the  year  of  our  Lord 
the  said  P.  B.  D.,  being  the  keeper  of  the  said  asylum,  in  the 
first  count  of  this  indictment  mentioned,  to  wit,  at  the  parish 
of  Tooting  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  voluntarily  received    the  said  J.  A.  into  the  charge  and 
custody  of  the  said  P.  B.  D.,  and  the  said  P.  B.  D.  thenceforth 
and  on  and  from  the  said  twenty-eighth  day  of  October,  and 
upon   and  during   all  the   days  and    tim.es  between   that  day 
and  the  fifth  day  of  January,  in  the  year  of  our  Lord 
kept  and  detained  the  said  J.  A.,  and  the  said  J.  A.  continued, 
remained,  and  was  under  the  care,  charge,  dominion,  govern- 
ment, custody,  and  control  of  the  said  P.  B.  D.,  in  the  said  asy- 
lum, to  wit,  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  central  criminal  court,  and  the  said  J. 
A.  was,  during  all  the  several   days  and  times  in  this  count 
aforesaid,  wholly  subject  to  and  dependent  upon  the  said  P.  B. 
D.  for  abode,  shelter,  lodging,  sleeping  accommodation,  meat, 
drink,  food,  and  clothing,  and  was  unable  to  obtain  the  same, 
or  any  of  them,  from  any  other  source  or  from  any  other  person 
or  persons  whomsoever.     And  the  jurors  aforesaid  do  further 
present,  that  the  said  P.  B.  D.,  on  the  several  days  in  this  count 
aforesaid,  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  central  criminal  court,  in  and  upon  the 
said  J.  A.,  feloniously  did   make   divers  assaults,  and  that  the 
said  P.  B.  D.,  upon  and  during  all  and  every  the  days  in  this 
count  aforesaid,  and  during  all  the  said  time  whilst  the  said  J. 
A.  remained  and  continued  under  the  care,  charge,  dominion, 
government,  custody,  and  control  of  the  said  P.  B.  D.,  in  the 
said  asylum,  as  in  this  count  mentioned,  at  the  parish  of  Toot- 
ing aforesaid,  and  within  the  jurisdiction  of  the  said  central 
criminal  court,  feloniously  did  omit,  neglect,  and   refuse  to  fur- 
nish, provide,  or  supply  the  said  J.  A.  with  meat  and  drink  in 
sufficient  quantities  for   the  support,  nourishment,  and  suste- 
nance of  the  body  of  the  said  J.  A.,  according  to  the  duty  of 
148 


HOMICIDE.  0-Q^) 

the  said  P.  B.  D.,  in  that  hehalf ;  but  on  the  contrary  thereof, 
upon  and  during  all  and  every  the  days  in  this  count  aforesaid, 
and  during  all  the  time  in  this  count  aforesaid,  at  the  parish  of 
Tooting  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
feloniously  and  witliout  any  lawful  excuse  whatsoever,  did  fur- 
nish, provide,  and  supply  the  said  J.  A.  with  food,  meat,  and 
drink  in  very  insufficient  and  inadequate  quantities,  and  in  no 
sufficient  and  adequate  quantity  whatsoever  for  such  support, 
nourishment,  and  sustenance  of  the  body  of  the  said  J.  A.,  as  in 
this  count  aforesaid,  and  that  the  said  P.  B.  D.,  U[)on  and  during 
all  and  every  the  days  in  this  count  aforesaid,  and  during  all 
the  said  time  whilst  the  said  J.  A.  remained  and  continued 
under  such  charge,  care,  dominion,  government,  custody,  and 
control,  as  in  this  count  aforesaid,  in  the  said  asylum,  at  the 
parish  of  Tooting  aforesaid,  and  within  the  jurisdiction  of  the 
said  central  criminal  court,  feloniously  did  omit,  neglect,  and 
refuse  to  furnish,  provide,  or  supply  the  said  J.  A.  with  such 
proper  and  suitable  lodging,  shelter,  and  abode,  as  was,  upon  all 
and  every  the  days  in  this  count  aforesaid,  and  during  all  the 
said  last  mentioned  time,  needful  for  the  said  J.  A.  and 
necessary  to  preserve  him  in  a  good  state  of  bodily  health, 
according  to  his  duty  in  that  behalf,  but  on  the  contrary  there- 
of, the  said  P.  B.  D.,  upon  all  the  several  days  and  times  in  this 
count  aforesaid,  at  the  parish  of  Tooting  aforesaid,  and  within 
the  jurisdiction  of  the  said  central  criminal  court,  knowingly 
and  feloniously  did  force,  compel,  and  oblige  the  said  J.  A.  to 
be  and  remain,  for  divers  long  spaces  of  time,  in  divers  ill- 
ventilated  and  unwholesome  rooma  and  apartments,  then  over- 
crowded with  an  excessive  and  injurious  number  of  other 
jiersons  in  the  said  asylum,  and  feloniously  did  expose  the  said 
J.  A.,  and  force,  oblige,  and  compel  the  said  J.  A.  to  be  and 
remain  exposed  for  divers  long  spaces  of  time  to  divers  fetid, 
injurious,  noxious,  unwholesome,  and  pestilential  vapors  and 
exhalations  in,  near  to,  around,  and  about  the  said  asylum,  then 
arising  and  existing;  and  that  the  said  P.  B.  D.,  upon  and 
during  all  and  every  the  days  in  this  count  aforesaid,  during 
all  the  time  whilst  the  said  J.  A.  remained  and  continued  under 
such  charge,  care,  dominion,  government,  custody,  and  control 
of  the  said  P.  B.  D.,  as  in  this  count  aforesaid,  at  the  parish  of 

149 


(166)  OFFENCES    AGAINST    THE    PERSON. 

Tooting  aforesaid,  an<l  within  the  jurisdiction  of  the  said  cen- 
tral criminal  court,  feloniously  did  omit,  neglect,  and  refuse  to 
furnish,  provide,  or  supply  the  said  J.  A.  with  such  bedding 
and  sleeping  accommodation  as  w^as  necessary  to  enable  the  said 
J.  A.,  on  all  and  every  the  several  days  in  this  count  aforesaid, 
to  enjoy  a  due  quantity  of  wholesome,  healthy,  and  refreshing 
rest  and  sleep,  according  to  the  duty  of  the  said  P.  B.  D.,  in 
that  behalf;  but  on  the  contrary  thereof,  upon  divers  nights 
during  the  time  in  this  count  aforesaid,  at  the  parish  of  Toot- 
ing aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
feloniously  and  knowingly  did  force,  oblige,  and  compel  the 
said  J.  A.  to  lie  and  be  in  a  certain  ill-ventilated  and  unwhole- 
some room,  then  overcrowded  with  an  excessive  and  injurious 
number  of  other  persons,  and  to  be  and  remain  for  divers  long 
spaces  of  time  in  divers  fetid,  injurious,  noxious,  unwholesome, 
and  pestilential  vapors  and  exhalations  in  the  said  room  then 
arising  and  existing,  and  also  to  lie  and  be  in  a  certain  small 
bed  in  the  said  room,  together  with  two  other  persons,  to  wit, 
J.  A.  and  W.  I).,  whereby  the  said  bed  became  and  w^as  on  all 
and  every  of  the  said  nights  totally  unfit  for  and  incapable  of 
aiFording  the  said  J.  A.  any  wholesome,  healthy,  or  refreshing 
sleep  whatsoever,  and  that  the  said  P.  B.  D.,  not  regarding  his 
duty  in  that  behalf,  upon  all  and  ever}^  the  days  in  this  count 
aforesaid,  and  during  all  the  said  time  whilst  the  said  J.  A. 
remained  and  continued  under  such  charge,  care,  dominion, 
government,  custody,  and  control,  as  in  this  count  aforesaid,  at 
the  parish  of  Tooting  aforesaid,  and  within  the  jurisdiction  of 
the  said  central  criminal  court,  feloniously  did  omit,  neglect, 
and  refuse  to  furnish,  provide,  or  sup]»ly  the  said  J.  A.  with  a 
sufficient  quantity  of  any  clothing  or  covering  whatsoever,  for 
the  protection  of  the  body  of  the  said  J.  A.  from  the  cold, 
damp,  and  inclemency  of  the  weather,  according  to  the  duty  of 
the  said  P.  B.  D.  in  that  behalf,  but  on  the  contrary  thereof, 
during  divers  of  the  said  days,  in  this  count  before  mentioned, 
which  were  damp,  cold,  and  inclement,  at  the  parish  of  Toot- 
ing aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
feloniously  and  contrary  to  his  duty  in  that  behalf,  left  the  said 
J.  A.  exposed,  and  then  and  there  sufiered  and  permitted  the 
said  J.  A.  to  be  and  remain  exposed  for  divers  long  spaces  of 
150 


HOMICIDE.  (166) 

time  without  any  sufficient  or  adequate  quantity  of  clothing  or 
covering  for  his  body,  but  with  a  totally  inadequate  and  insuf- 
ficient quantity  of  clothing  and  covering  for  the  body  of  the 
said  J.  A.,  to  protect  him  from  the  severity  and  inclemency  of 
the  weather,  by  reason  and  means  of  which  said  several  feloni- 
ous acts,  defaults,  and  omissions  of  the  said  P.  B.  D.  in  this 
count  before  alleged,  the  said  J.  A.  afterwards,  to  wit,  on  the 
fifth   day  of  January,  in  the  year  of  our  Lord  at  the 

parish  of  Tooting  aforesaid,  in  the  county  of  Surrey  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  became  and  was, 
and  the  said  P.  B.  J),  did  thereby  then  and  there  feloniously 
cause  and  occasion  the  said  J.  A.  to  become  and  be  mortally 
sick,  weak,  diseased,  disordered,  and  distempered  in  his  body. 
Of  which  said  last  mentioned  mortal  sickness,  weakness,  disease, 
disorder,  and  distemper,  the  said  J.  A.,  on  and  from  the  said 
last  mentioned  day  until  the  sixth  day  of  January,  in  the  year 
of  our  Lord  as  well  at  the  parish  of  Tooting  aforesaid, 

and  within  the  jurisdiction  of  the  said  court,  as  at  the  parish  of 
Saint  Pancras,  in  the  county  of  Middlesex  and  within  the 
jurisdiction  of  the  said  central  criminal  court,  did  languish, 
and  languishing  did  live,  and  then  on  the  said  la«t  mentioned 
day,  in  the  year  of  our  Lord  aforesaid,  at  the  parish  last 

aforesaid,  in  the  county  of  Middlesex  aforesaid,  and  within 
the  jurisdiction  of  the  said  central  criminal  court,  of  the  said 
last  mentioned  mortal  sickness,  weakness,  disease,  disorder,  and 
distemper,  did  die;  and  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  saj^,  that  the  said  P.  B,  D.,  the  said  J.  A.,  in  man- 
ner and  form  in  this  count  mentioned,  feloniouslv  did  kill  and 
slay,  against  the  peace,  etc. 

Fifth  count. 
{Same  as  the  fourth^  except  that  it  charged  acts  of  omission  only.) 

Sixth  count. 
{Same  as  the  fourth^  hut  charging  acts  of  commission  only.) 

Seventh  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  heretofore,  to  wit,  on  all  the  days  and  times  herein- 

151 


(166)  OFFENCES    AGAINST    THE    PERSON. 

after  in  tliis  count  mentioned,  J.  A.,  hereinafter  in  this  count 
mentioned,  was  a  poor,  indigent,  and  destitute  infant  child,  of 
very  tender  age,  to  wit,  of  the  age  of  six  years,  and  was  totally 
unable  to  provide  for  or  take  care  of  himself,  and  during  all  the 
days  and  times  in  this  count  mentioned  was  in  a  sick,  feeble, 
and  disordered  state  of  health,  and  required,  for  the  purpose  of 
enabling  him  to  recover  bodily  health  and  strength,  to  be  kept 
in  a  pure  and  healthy  atmosphere,  and  some  airy  and  well 
ventilated  place  or  places.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  on  and  from  the  second 
day  of  January,  in  the  year  of  our  Lord  until  the  fifth 

day  of  the  same  montlj,  the  said  J.  A.  was  in  and  under  the 
care,  charge,  dominion,  government,  control,  and  keeping  of 
the  said  P.  B.  D.,  in  the  said  asylum  in  the  first  count  of  this 
indictment  mentioned,  for  reward  to  the  said  P.  B.  D.  in  that 
behalf,  and  that  during  all  the  time  the  said  J.  A.  remained 
under  such  charge,  care,  dominion,  government,  custody,  and 
control,  as  in  this  count  aforesaid,  it  was  the  duty  of  the  said 
P.  B.  D.  to  furnish  and  provide  the  said  J  A.  with  such  healthy 
and  wholesome  shelter,  lodging,  and  sleeping  accommodation 
as  should  be  necessary  to  enable  the  said  J.  A.  to  recover  his 
bodily  health  and  strength.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  the  said  P.  B.  D., 
upon  the  said  second  da}'  of  January,  in  the  year  of  our  Lord 
at  the  parish  of  Tooting  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  in  and  upon  the  said  J.  A.  feloniously 
did  make  an  assault;  and  the  said  P.  B,  D.,  then  and  there,  and 
upon  all  the  days  in  this  count  before  mentioned,  and  during 
all  the  time  whilst  the  said  J.  A.  was  so  under  the  care,  charge, 
dominion,  government,  control,  and  keeping  of  the  said  P.  B. 
D.,  as  in  this  count  aforesaid,  at  the  parish  of  Tooting  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  feloniously,  and 
contrary  to  his  duty  in  that  behalf,  did  keep,  confine,  and  detain 
the  said  J.  A.  in  divers  close,  confined,  and  ill-ventilated  rooms 
in  the  said  asylum,  and  which,  during  all  the  time  last  aforesaid, 
were  rendered  and  were  impure,  unhealthy,  unwholesome,  and 
unfit  for  the  said  J.  A.  to  inhabit,  by  reason  of  their  being  over- 
crowded with  a  large,  excessive,  and  injurious  number  of  other 
persons;  and  also  daring  divers  nights,  during  the  time  last 
152 


HOMICIDE.  (1*56) 

aforesaid,  feloniously  did  force,  compel,  and  oblige  the  said  J. 
A.  to  lie,  remain,  and  be  in  a  certain  close  and  coniined  and  ill- 
ventilated  bedroom,  which  also  was  on  all  the  said  nights  impure, 
unwholesome,  and  unhealthy,  by  reason  of  divers  impure,  inju- 
rious, noxious,  and  pestilential  vapors  and  exhalations  in  the 
said  last  mentioned  bedroom,  then  arising,  existing,  and  being; 
by  reason  and  by  means  of  which  said  several  felonious  acts  and 
defaults  of  the  said  P.  B.  D.,  in  this  count  mentioned,  the  said 
J.  A.  afterwards,  to  wit,  on  the  fifth  day  of  January,  in  the 
year  of  our  Lord  at  the  parish  of  Tooting  aforesaid,  in 

the  county  of  Surrey  aforesaid,  and  within  the  jurisdiction  of 
the  said  central  criminal  court,  became  and  was  mortally  sick, 
weak,  diseased,  disordered,  and  distemi'cred  in  his  body,  of  which 
said  last  mentioned  mortal  sickness,  weakness,  disease,  disorder, 
and  distemper  the  said  J.  A.,  on  and  from  the  day  last  aforesaid, 
until  the  sixth  daj''  of  January,  in  the  same  year,  as  well  at  the 
parish  of  Tooting  aforesaid,  and  within  the  jurisdiction  of  the 
said  central  criminal  court,  as  at  the  parish  of  Saint  Pancras, 
in  the  county  of  Middlesex  aforesaid,  and  within  the  jurisdiction 
of  the  said  central  criminal  court,  did  languish,  and  languish- 
ing did  live,  and  then  on  the  said  sixth  day  of  January,  in  the 
year  of  our  Lord  at  the  parish  last  aforesaid,  and  within 

the  jurisdiction  of  the  said  court,  of  the  said  last  mentioned 
mortal  sickness,  weakness,. disease,  disorder,  and  distemper  did 
die.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  say, 
that  the  said  P.  B.  D.  the  said  J.  A.,  in  manner  and  form  in  this 
count  aforesaid,  feloniously  did  kill  and  slay,  against  the  peace, 
etc. 

Eighth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  heretofore  and  at  the  time  of  committing 
the  offence  by  the  said  P.  B.  D.,  and  during  all  the  times  here- 
inafter mentioned,  J.  A.,  hereinafter  in  this  count  mentioned, 
was  a  poor,  indigent,  and  destitute  child  of  a  tender  age,  to  wit, 
of  the  age  of  six  years,  and  totally  unable  to  support,  provide 
for,  and  take  care  of  himself;  and  the  said  P.  B.  D,,  at  his 
request,  had  the  care,  charge,  possession,  and  custody  of  the  said 
J.  A.,  and  had  undertaken  the  support  and  maintenance  of  the 

153 


(166)  OFFENCES    AGAINST    THE    PERSON 

said  J.  A.,  and  the  finding  and  providing  the  said  J.  A.  with 
reasonahly  sufficient  and  proper  victuals,  food,  drink,  board, 
clothing,  and  lodging,  for  reward  to  the  said  P.  B.  D.  in  that 
behalf,  to  wit,  within  the  jurisdiction  of  the  said  central  crim- 
inal court.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present,  that  the  said  P.  B.  D.,  on  the  said 
twenty-eighth  day  of  October,  in  the  year  of  our  Lord 
and  on  divers  days  and  times  aforesaid,  to  wit,  and  before  the 
death  of  the  said  J.  A.,  as  hereinafter  mentioned,  at  the  parish 
of  Tooting  aforesaid,  in  the  county  of  Surrey  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  in  and  upon  the  said 
J.  A.  feloniously  did  make  divers  assaults,  and  knowingly, 
wilfully,  and  feloniously  did  put,  place,  keep,  and  lodge  the 
said  J.  A.,  for  divers  long  spaces  of  time,  to  wit,  for  and  during 
the  whole  of  those  days  and  times,  in  divers  rooms  and  apart- 
ments, then  and  during  all  that  time  greatly  and  excessively 
overcrowded,  overcharged,  and  filled  to  excess  with  divers  and 
very  many  other  infants  and  persons,  and  then  also  being  in  an 
ill-ventilated,  impure,  foul,  unwholesome,  unhealthy  state,  and 
in  an  unfit  and  improper  state  for  the  said  J.  A.  to  be  put,  placed, 
kept,  and  lodged  in,  and  unfit  for  the  habitation  of  man  ;  and 
also  on  the  said  days  and  times,  at  the  place  aforesaid,  within 
the  jurisdiction  of  the  said  court,  wilfullj'  and  feloniously  did 
neglect,  omit,  and  refuse  to  give  and  administer  to,  or  find 
and  provide  the  said  J.  A.  with,  and  to  suft'er  and  permit  to  be 
given  and  administered  to,  or  found  and  provided  the  said  J.  A. 
with  reasonably  sufiicient  and  proper  victuals,  food,  drink,  and 
clothing  necessary  for  the  sustenance,  support,  and  maintenance 
of  the  body  of  the  said  J.  A.,  by  means  of  which  said  placing, 
keeping,  putting,  and  lodging  the  said  J.  A.  in  the  said  rooms 
and  apartments,  and  also  by  means  of  which  said  neglecting, 
omitting,  and  refusing  to  give  and  administer  to,  or  find  and 
provide  the  said  J.  A.  with  such  reasonably  sufficient  and 
proper  victuals,  food,  drink,  and  clothing  as  were  necessary  for 
the  sustenance,  support,  and  maintenance  of  the  body  of  the 
said  J.  A.,  the  said  J.  A.  afterwards,  to  wit,  on  the  fifth  day  of 
January,  in  the  year  of  our  Lord  at  the  place  aforesaid, 

in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  became  and  was  mortally  sick  and  ill,  weak,  diseased, 
154 


HOMICIDE.  (166) 

disordered,  and  distempered  in  his  body,  and  of  wliich  said  last 
named  mortal  sickness,  illness,  weakness,  disease,  disorder,  and 
distemper  the  said  J.  A.,  on  and  from  the  day  and  year  last 
aforesaid,  until,  to  wit,  the  sixth  day  of  January,  in  the  year  of 
our  Lord  as  well  at  the  parish  of  Tooting  aforesaid,  and 

within  the  jurisdiction  of  the  said  court,  as  at  the  parish  of 
Saint  Pancras,  in  the  county  of  Middlesex,  and  within  the 
jurisdiction  of  the  said  court,  did  languish,  and  languishing 
did  live,  and  then,  to  wit,  on  the  day  and  year  last  aforesaid,  at 
the  [)arish  last  aforesaid,  in  the  county  last  aforesaid,  and  within 
the  jurisdiction  of  the  said  court,  of  the  said  last  named  mortal 
sickness,  illness,  weakness,  disease,  disorder,  and  distemper,  did 
die.  And  so  the  jurors  aforesaid,  on  their  oath  aforesaid,  do 
say,  that  the  said  P.  B.  D.  the  said  J.  A.,  in  manner  and  form 
in  this  count  aforesaid,  feloniously  did  kill  and  slay,  against  the 
peace,  etc. 

Ninth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  farther 
present,  that  before  and  at  the  time  of  the  committing  of  the 
ofience  by  the  said  P.  B.  D,,  and  during  all  the  times  herein- 
after mentioned,  J.  A.,  hereinafter  in  this  count  mentioned, 
was  a  poor,  indigent,  and  destitute  child  of  a  tender  age,  to  wit, 
of  the  age  of  six  years,  and  wholly  unable  to  support,  provide 
for,  and  take  care  of  himself;  and  the  said  P.  B.  D.,  at  his 
request,  had  the  care,  charge,  possession,  and  custody  of  the  said 
J.  A.,  and  had  undertaken  the  support  and  maintenance  of  the 
said  J.  A.,  and  the  finding  and  providing  the  said  J.  A.  with 
reasonably  sufficient  and  proper  board  and  lodging,  for  reward 
to  the  said  P.  B.  D.  in  that  behalf,  to  wit,  within  the  jurisdic- 
tion of  the  said  central  criminal  court.  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  the  said 
P.  B.  D.,  on  the  said  twenty-eighth  day  of  October,  in  the  year 
of  our  Lord  and  on  divers  days  and  times  afterwards, 

and  before  the  death  of  the  said  J.  A.,  as  hereinafter  mentioned, 
at  the  parish  of  Tooting  aforesaid,  in  the  county  of  Surrey 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  in  and 
upon  the  said  J.  A.  feloniously  did  make  divers  assaults,  and 
knowingly,  wilfully,  and  feloniously  did  put,  place,  keep,  and 

155 


(167)  OFFENCES    AGAINST    THE    PERSON. 

lodge  the  said  J.  A.,  for  divers  long-  spaces  of  time,  to  wit,  for 
and  during  the  whole  of  those  days  and  times,  in  divers  rooms 
and  apartments,  then  and  during  all  that  time  greatly  and  exces- 
sively overcrowded,  overcharged,  and  tilled  to  excess  with  divers 
and  very  many  other  infants  and  persons,  and  then  also  heing 
in  an  ill-ventilated,  impure,  foul,  unwholesome,  and  unhealthy 
state,  and  in  an  unfit  and  improi)er  state  for  the  said  J.  A.  to 
be  put,  placed,  kept,  and  lodged  in;  by  means  of  which  said 
putting,  placing,  keeping,  and  lodging  the  said  J.  A.  in  the 
said  rooms  and  apartments,  the  said  J.  A.  afterwards,  to  wit,  on 
the  fifth  day  of  Januars',  in  the  year  of  our  Lord  at  the 

parish  aforesaid,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  became  and  was  mortally  sick  and 
ill,  weak,  diseased,  disordered,  and  distempered  in  his  body,  and 
of  which  said  last  mentioned  sickness,  illness,  weakness,  dis- 
ease, disorder,  and  distemper  the  said  J.  A.,  on  and  from  the 
day  and  year  last  aforesaid,  until,  to  wit,  on  the  sixth  day  of 
January,  in  the  year  of  our  Lord  as  well  at  the  parish  of 

Tooting  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
as  at  the  parish  of  Saint  Pancras,  in  the  county  of  Middlesex, 
and  within  the  jurisdiction  of  the  said  court,  did  languish,  and 
languishing  did  live,  and  then,  to  wit,  on  the  day  and  year 
last  aforesaid,  at  the  parish  last  aforesaid,  in  the  county  last 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  of  the 
said  last  mentioned  mortal  sickness,  illness,  weakness,  disease, 
disorder,  and  distemper,  did  die.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  P.  B.  D.  the 
said  J.  A.,  in  manner  and  form  in  this  count  aforesaid,  feloni- 
ously did  kill  and  slay,  against  the  peace,  etc. 

(167)  Manslaughter  by  striking  ivith  a  sione.{m) 

That  T.,  on,  etc.,  at,  etc.  {commencing  as  usual)^  at  G.,  in  the 
county  of  M.  aforesaid,  in  and  upon  one  J.  L.,  in  the  peace  of 
said  commonwealth,  then  and  there  being,  feloniously  and  wil- 
fully did  make  an  assault,  and  that  he  the  said  T.  a  certain  stone, 
which  he  the  said  T.  in  his  right  hand  then  and  there  had  and 
held,  in  and  upon  the  left  side  of  the  head  of  him  the  said  J.  L., 

(m)  Under  this  form  it  was  held,  that  it  wag  sufficiently  averred  that  T.  gave 
L.  a  mortal  wound  on  the  '2bth  of  Sejitember,  at  G.    Turns  v.  Com.,  6  Met.  "225. 

156 


HOMICIDE.  (168) 

then  and  there  feloniously  and  wilfully  did  cast  and  throw,  and 
that  the  said  T.,  with  the  stone  aforesaid,  so  as  aforesaid  cast 
and  thrown,  the  aforesaid  J.  L.,  in  and  upon  the  left  side  of  the 
head  of  him  the  said  J.  L.,  then  and  there  feloniously  and  wil- 
fully did  strike,  penetrate,  and  wound,  giving  to  the  said  J.  L,, 
by  the  casting  and  throwing  of  the  stone  aforesaid,  in  and  upon 
the  left  side  of  the  head  of  him  the  said  J.  L.,  one  mortal  wound, 
of  the  length  of  one  inch,  and  of  the  breadth  of  half  an  inch, 
of  which  said  mortal  wound  he  the  said  J.  L.,  from  the  said 
twenty-fifth  day  of  September,  in  the  year  aforesaid,  to  the 
twenty-sixth  day  of  the  same  September,  at  G.  aforesaid,  in  the 
county  aforesaid,  did  languish,  and  languishing  did  live;  on 
which  twenty-sixth  day  of  the  same  September,  at  G.  aforesaid, 
the  said  J.  L.,  of  the  mortal  wound  aforesaid,  died;  and  so  the 
said  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the 
said  T.  him  the  said  J.  L.,  in  manner  and  form  aforesaid,  felo- 
niously and  wilfully  did  kill  and  slay,  against,  etc.  [Conclude as 
in  book  1,  chapter  3.) 

(168)  Manslaughter.     Br/  giving  to  the  deceased  large  quantities  of 
spirituous  liquors  of  which  he  died.{n) 

That  J.  R.  P.,  J.  P.,  and  A.  K.,  etc.,  on  the  fifth  of  ]^ovember, 
at,  etc.,  did  give,  administer,  and  deliver  to  one  M.  A.  divers 
large  and  excessive  quantities  of  spirituous  liquors  mixed  with 
water,  and  also  divers  large  and  excessive  quantities  of  wine  and 
porter,  to  wit,  one  pint  of  brandy  mixed  with  water,  one  pint 
of  rum  mixed  with  water,  one  pint  of  gin  mixed  with  water, 
two  quarts  of  wine  called  port  wine,  and  one  quart  of  porter, 
and  then  and  there,  unlawfully  and  feloniously,  did  induce, 
procure,  and  persuade  the  said  M.  A.  to  take,  drink, and  swallow 
down  into  his  body  the  said  quantities  of  spirituous  liquors 
mixed  with  water,  and  of  wine  and  porter,  the  said  quantities, 
etc.,  being  then  and  there,  when  taken,  drunk,  and  swallowed 
by  the  said  M.  A.,  likely  to  cause  and  procure  his  death,  and 
which  they  the  said  J.  R.  P.,  J.  P.,  and  A.  K.,  then  and  there 
well  knew;  and  that  the  said  M.  A.  did  then  and  there,  by  means 

(n)  R.  V.  Paok.'ird,  1  C.  &  M.  133.  The  defendants  were  found  guilty  before 
Mr.  Baron  Piuke. 

157 


(169)  OFFENCES    AGAINST    THE    PERSON. 

of  the  said  inducement,  procurement,  and  persuasion,  etc.,  take 
drink,  and  swallow  down  into  his  body  the  said  large  quantities, 
etc.,  so  given,  etc.,  unto  him  as  aforesaid,  by  means  whereof  the 
said  M.  A.,  then  and  there,  became  and  was  greatly  drunk  and 
intoxicated,  sick,  and  greatly  distempered  in  his  body;  and 
while  he  the  said  M.  A.  was  so  drunk,  etc.,  as  aforesaid,  they 
the  said  J.  R.  P.,  J.  P.,  and  A.  K  did  then  and  there,  to  wit, 
on,  etc.,  at,  etc.,  make  an  assault  on  him  the  said  M.  A.,  and 
then  and  there  uidawfully  and  feloniously  forced  and  compelled 
him  to  go,  and  put,  placed,  and  confined  him  in  a  certain  car- 
riage, to  wit,  a  cabriolet,  and  then  and  there  drove  and  carried 
him  about  therein  for  a  long  time,  to  wit,  for  two  hours  then 
next  following,  and  therein  and  thereby,  then  and  there,  greatly 
shook,  tlirew,  pulled,  and  knocked  about  the  said  M.  A.,  by 
means  whereof  the  said  M.  A.,  then  and  there,  also  became 
mortally  sick  and  greatly  distempered  in  his  body;  of  which 
said  large  and  excessive  quantities  of  the  said  spirituous  liquors, 
etc.,  so  by  him  the  said  M.  A.  taken,  etc  ,  as  aforesaid,  and  of 
the  said  drunkenness,  etc.,  occasioned  thereby,  and  of  the  said 
shaking,  etc.,  and  of  the  said  sickness  and  distemper  occasioned 
thereby,  he  the  said  M.  A.,  then  and  there  instantly  died.  {Con- 
clude with  an  allegation  in  the  usual form^  viz.) :  that  the  said  J.  R.  P., 
J.  P.,  and  A.  K.,  the  said  M.  A.,  in  manner  and  form  aforesaid, 
unlawfully  and  feloniously  did  kill  and  slay,  etc. 

(169)  Against  driver  of  a  cart  for  driving  over  deceased. 

That  A.  B.,  of,  etc.,  on  with  force  and  arms,  at  in 

the  county  aforesaid,  in  the  pui)lic  highway  there,  in  and  upon 
one  C.  D.,  in  the  peace  of  the  said  commonwealth,  then  and 
there  being,  feloniously  and  wilfully  did  make  an  assault,  and 
a  certain  cart  of  the  value  of  ten  dollars,  then  and  there  drawn 
by  two  horses,  which  he  the  said  A.  B.  was  then  and  there 
driving  in  and  along  the  highway  aforesaid,  in,  upon,  and  against 
the  said  C.  I).,  feloniously  and  wilfully,  did  tlien  and  there  force 
and  drive;  and  him  the  said  0.  D.  did  thereby,  then  and  there, 
throw  to  and  upon  the  ground,  and  did  then  and  there  felo- 
niously and  wilfully  force  and  drive  one  of  the  wheels  of  the 
said  cart  against,  upon,  and  over  the  head  of  him  the  said  C.  D., 
then  lying  upon  the  ground,  and  thereby  did  then  and  there  give 
15b 


HOMICIDE.  ("170) 

to  the  said  C.  D.,  in  and  upon  the  head  of  him  the  said  C.  D.,  one 
mortal  fracture  and  contusion,  of  the  breadth  of  four  inches, 
and  of  the  depth  of  four  inches,  of  which  said  mortal  fracture 
and  contusion,  the  said  C  D.  then  and  there  instantly  died; 
and  so  the  jurors  aforesaid,  upon  their  oatb  aforesaid,  do  say, 
that  the  said  A.  B.,  him  the  said  C.  D.,  then  and  there,  in  manner 
and  form  aforesaid,  feloniously,  unlawfully,  and  wilfully,  did 
kill  and  slayj^o)     {Conclude  as  in  book  1,  chapter  3.) 

(170)    Manslaughter.     Against  a  husband  for  neglecting  to 'provide 
shelter  for  his  vnfe.{p) 

That  before,  upon,  and  during  all  the  several  days  and  times 
in  this  count  hereinafter  mentioned,  and  at,  etc.,  G.  P.,  late  of 
the  parish  of  JST.,  in  the  county  of  Kent,  laborer,  was  the  husband 
of  one  M.  P.,  she  the  said  M.  P.,  during  all  the  days  and  times 
in  this  count  mentioned,  being  sick,  weak,  diseased,  distempered, 
and  disordered  in  her  body,  and  through  such  weakness,  etc., 
unable  to  provide  herself  with  such  food,  raiment,  apparel,  and 
shelter,  as  were  necessary  for  the  sustenance  and  protection  of 
her  body,  and  being  unable,  during  all  the  days  and  times  afore- 
said, to  provide  herself  with  such  medicines,  care,  and  treatment, 
as  were  necessary  for  the  cure  and  alleviation  of  her  said  sick- 
ness, etc.;  all  which  several  premises  the  said  G.  P.,  on  all  the 
days,  etc.,  well  knew;  and  the  jurors  aforesaid,  etc.,  further 
present,  that  it  was  the  duty  of  the  said  G.  P.,  being  such 
husband  as  aforesaid,  during  all  the  days  and  times  aforesaid, 
to  find,  provide,  and  supply  the  said  M.  P.  with  competent  and 
sufficient  meat  and  drink  for  the  sustenance  of  her  body,  and 
also  with  competent  and  suflicient  apparel,  lodging,  and  shelter 
for  the  protection  of  the  body  of  the  said  M.  P.,  and  also  with 
such  medicines,  care,  and  treatment  as  were  necessary  for  the 

(o)  Davis's  Precedents,  166  ;  Starkie's  C.  P.  425. 

(p)  R.  V.  Plummer,  1  C.  &  K.  GOO.  Though  in  this  case  the  husband  and 
wife  separated  by  common  consent,  the  husband  granting  the  wife  a  stipuUited 
allowance,  which  was  regularly  paid,  it  was  held  that  if  he  knew,  or  was  informed 
that  she  was  without  shelter,  and  refused  to  provide  her  with  it,  in  consequence 
of  which  her  death  ensued,  he  was  guilty  of  manslaughter  (even  though  the 
wife  was  laboring  under  disease  which  must  ultimately  have  proved  fatal),  if  it 
could  be  shown  that  her  death  was  accelerated  for  want  of  the  shelter  which  he 
had  denied.  The  facts  not  supporting  the  indictment,  the  defendant  was  ac(juitted. 
Wh.  Cr.  L.  8th  ed.  §§  332,  518. 

159 


(170)  OFFENCES    AGAINST    THE    PERSON. 

cure  and  alleviation  of  her  said  sickness,  etc.;  and  the  jurors 
aforesaid,  etc.,  present,  that  the  said  G.  P.,  on  the  nineteenth  of 
November,  one  thousand  eight  hundred  and  forty-three,  and  on 
divers  other  days  and  times  between  that  day  and  the  twenty- 
fourth  of  November,  one  thousand  eight  hundred  and  forty- 
three,  etc.,  at,  etc.,  did  assault  the  said  M.  P.,  and  that  the  said  G. 
P.,  on  the  said  nineteentli  of  November,  at,  etc.,  feloniously  and 
without  lawful  excuse,  and  contrary  to  his  duty  in  that  behalf, 
and  against  the  will  of  the  said  M.  P.,  did  omit,  neglect,  and 
refuse  to  find,  provide,  and  supply  to  the  said  M.  P.,  competent 
and  sufficient  meat  and  drink  for  the  sustenance  of  the  body  of 
the  said  M.  P. ;  and  also,  during  all  the  several  days  last  aforesaid, 
at,  etc.,  feloniously,  without  lawful  excuse,  contrary  to  his  duty 
in  that  behalf,  and  against  the  will  of  the  said  M.  P.,  did  omit, 
neglect,  and  refuse  to  provide  and  supply  the  said  M.  P.  with 
competent  and  sufficient  apparel,  lodging,  and  shelter  for  the 
protection  of  the  body  of  the  said  M.  P.,  and  also  during  all  the 
days  last  aforesaid,  at,  etc.,  feloniously  without  lawful  excuse, 
contrary  to  his  duty  in  that  behalf,  and  against  the  will  of  the 
said  M.  P.,  did  omit,  neglect,  and  refuse  to  find,  provide,  and 
supply  the  said  M.  P.  with  such  medicines,  care,  and  treatment, 
as  were  necessary  for  the  cure  and  alleviation  of  the  said  sick- 
ness, weakness,  etc.,  by  means  of  which  said  several  premises, 
she  the  said  M.  P.,  on  and  from  the  said  nineteenth  of  jSTovember, 
one  thousand  eight  hundred  and  forty-three,  until  the  said 
twenty-fourth  of  November,  in  the  said  year,  did  languish,  and 
languishing  did  live,  and  then,  to  wit,  on  the  said  twenty-fourth 
of  November,  at,  etc.,  in  the  year  aforesaid,  etc.,  of  the  said 
mortal  sickness,  weakness,  distemper,  and  disorder  of  her  body, 
did  die.  And  the  jurors,  etc.,  do  say,  that  the  said  G.  P.,  her 
the  said  M.  P.,  in  manner  and  form  aforesaid,  feloniously  did 
kill  and  slay,  etc.{q) 

(q)  The  second  count  was  similar  to  the  first,  except  that  it  omitted  the  alle- 
gations of  assault,  and  also  of  the  acts  haviuii  been  done  against  the  will  of  the 
deceased.  The  third  count  charged  the  death  to  have  been  caused  by  the  in- 
clemency of  the  weather;  and  tiie  fourth  and  fifth  and  sixth  counts  repeated 
severally  the  allegations  in  the  second,  relative  to  the  omitting  to  supply  clothing, 
lodging,  food,  and  medicine. 

160 


HOMICIDE.  (171) 

(171)  Murder.    In  a  duelfovght  luithout  the  state.{r) 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.,  being  an 
inhabitant  of  this  state,  to  wit,  of  B.  in  the  county  of  S.,  and 
commonwealth  aforesaid,  gentleman,  by  a  previous  appointment 
and  engagement  made  within  this  state,  to  wit,  at  B.,  in  the 
county  of  S.,  and  commonwealth  aforesaid,  on  the  first  day  of 
May  in  the  year  aforesaid,  with  one  C.  D.  to  fight  a  duel  with- 
out the  jurisdiction  of  this  state,  to  wit,  at  T.,  in  the  county 
of  S.,  and  state  of  M.,  did,  afterwards,  to  wit,  on  the  first  day 
of  June  in  the  year  aforesaid,  at  T.,  in  the  county  of  S.,  and 
state  of  M.,  fight  a  duel  with  the  said  C.  D.,  and  on  the  first 
day  of  June  in  the  year  aforesaid,  with  force  and  arms,  at  T. 
aforesaid,  in  the  county  aforesaid,  in  the  state  of  M.,  in  and 
upon  the  said  C.  D.,  feloniously,  wilfully,  and  of  his  malice 
aforethought,  make  an  assault;  and  that  the  said  A.  B.  a  cer- 
tain pistol,  then  and  tliere  charged  with  gunpowder  and  one 
leaden  bullet,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  did  discharge  and  shoot  ofi!",  to,  against, 
and  upon  the  said  C,  D.;  and  that  the  said  A.  B.,  with  the 
leaden  bullet  aforesaid,  out  of  the  pistol  aforesaid,  then  and 
there,  by  force  of  the  gunpowder  aforesaid,  by  the  said  A.  B. 
discharged  and  shot  out  of  the  said  pistol  as  aforesaid,  then  and 
there  leloniously,  wilfully,  and  of  his  malice  aforethought,  did 
strike,  penetrate,  and  wound  the  said  C.  D,,then  and  there  giv- 
ing to  the  said  C.  D.,  with  the  leaden  bullet  aforesaid,  so  as 
aforesaid  discharged  and  shot  out  of  the  pistol  aforesaid,  by  the 
said  A.  B.,  in  and  upon  the  right  side  of  the  belly  of  the  said 
C.  D.,  one  mortal  wound,  of  the  depth  of  four  inches,  and  of 
the  breadth  of  one  inch ;  of  which  mortal  wound,  the  said  C. 
D.,  on  and  from  the  said  first  day  of  June  in  the  year  aforesaid, 
until  the  first  day  of  July  in  the  year  aforesaid,  within  this 
state,  to  wit,  at  B.,  in  the  county  of  S.,  and  commonwealth 
aforesaid,  did  suffer  and  languish,  and  languishing  did  live; 
and  afterwards,  to  wit,  on  the  first  day  of  July  in  the  year  afore- 
said, at  B.,  in  the  county  of  S.,  and  commonwealth  aforesaid, 
of  the  mortal  wound  aforesaid,  died.     And  so  the  jurors  alore- 

(r)  Rev.  Sts.  of  Mass.,  cli.  125,  §  3. 
VOL.  I.— 11  161 


(172)  OFFENCES    AGAINST    THE   PERSON. 

said,  upon  their  oath  aforesaid,  do  say,  that  the  said  A.  B.,hini 
the  said  C.  D.  then  and  there,  etc.  (as  in  usual  form). 

(172)  Manslaughter  in  second  degree^  against  captain  and  engineer 
of  a  steamboat,  under  New  York  Rev.  Statute,  p.  531,  s. 
46.(s) 

That  A.  B.,  late  of  the  first  ward  of  the  city  of  ISTew  York, 
in  the  county  of  ISTew  York  aforesaid,  hiborer,  and  C.  D,,  late  of 
the  same  place,  also  laborer,  on  the         day  of  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  forty-seven  (the 
said  A.  B.  then  and  there  being  the  captain  of  a  certain  steam- 
boat used  for  the  conveyance  of  passengers,  known  and  distin- 
guished by  the  name  and  title  of  the  "  Niagara,"  and  then  and 
there  having  charge  of  the  said  steamboat ;  and  the  said  C.  D., 
then  and  there  being  the  said  engineer  of  the  said  steamboat, 

,  CD  ^  CD 

having  charge  of  the  boiler  of  such  boat,  and  other  apparatus 
for  the  generation  of  steam),  on  the  day  and  year  aforesaid,  and 
whilst  the  said  steamboat  was  then  and  there  navigated,  sailed, 
and  propelled  in  and  upon  a  certain  river  and  public  highway, 
known  and  distinguished  by  the  name  and  title  of  the  Hudson 
River,  at  the  ward,  city,  and  county  aforesaid,  with  force  and 
arms,  feloniously  and  unlawfully,  from  ignorance  and  gross 
neglect  and  for  the  purpose  of  excelling  another  boat  (to  wit,  a 
certain  other  steamboat  called  the  )  in  speed,  did  create  and 
allow  to  be  created  such  an  undue  quantity  of  steam  as  to  burst 
and  break  the  boiler  of  said  boat,  and  other  apparatus  in  which 
said  steam  was  generated,  and  the  other  machinery  and  appara- 
tus connected  therewith,  by  which  bursting  and  breaking,  as 
well  as  by  reason  of  the  steam  and  scalding  water  escaping  and 
issuing  from  and  out  of  the  said  boiler  and  other  apparatus,  one 
E.  F.,  in  the  peace  of  God  and  of  the  said  people,  then  and  there 
being,  was  then  and  there  mortally  burned,  scalded,  and  wounded 
in  and  upon  the  head,  neck,  breast,  back,  stomach,  and  arms  of 
him  the  said  E.  F.,  of  which  said  mortal  burns,  scalds,  and 
wounds,  the  said  E.  F.  then  and  there  instantly  died. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  A.  B.  and  C.  D.,  him  the  said  E.  F.,  in  the  man- 

(s)  For  this  form  I  am  indebted  to  J.  B.  Phillips,  Esq.,  assistant  district  at- 
torney in  1847  of  the  city  of  New  York. 

162 


HOMICIDE.  (173) 

ner  and  bj  the  means  aforesaid,  feloniously  and  vvilfally  did 
kill  and  slay.     {Conclude  as  in  book  1,  chapter  3.) 

(173)  Against  the  engineer  of  a  steamboat,  for  so  negligently  manag- 
ing the  engine  that  the  boiler  bursty  and  thereby  caused  the 
death  of  a  passenger.(t) 

That  Henry  Robert  Heasman,  late  of  the  parish  of  St.  Mar- 
tin in  the  Fields,  in  the  county  of  Middlesex,  and  within  the 
jurisdiction  of  the  said  court,  engineer,  on  the  twenty-seventh 
day  of  August,  in  the  year  of  our  Lord  at   the  parish 

aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction 
of  the  said  court,  was  employed  as  an  engineer  in  and  on  board 
a  certain  steamboat  called  the  "  Cricket,"  then  and  there  floating 
on  the  waters  of  a  certain  river  called  the  Thames,  there  situate, 
in  and  on  board  which   said  steamboat  there  then  were  divers, 
to  wit,  one  hundred,  of  her  majesty's  liege  subjects,  as  the  said 
Henry  Robert  Heasman  then  and  there  well  knew  ;  and  that  the 
said  Henry  Robert  Heasman,  as  such  engineer  as  aforesaid,  then 
and  there  had  and  took  upon  himself  the  care,  charge,  manage- 
ment, and  control  of  a  certain  steam-engine  and  boiler,  being 
then  and  there  in  and  attached  to  the  said  steamboat,  for  the 
purpose  of  propelling  the  same,  and  in  which  said  boiler  there 
were  then  and  there  divers  large  quantities  of  boiling  water, 
whereby  to  generate  steam,  whereby  to  work  the  said  steam- 
engine,  as  the  said  Henry  Robert  Heasman  then  and  there  well 
knew  ;  and  that  it  then  and  there  became  and  was  the  duty  of 
the  said  Henry  Robert  Heasman,  as  such  engineer  as  aforesaid, 
to  regulate  the  quantity  and  amount  of  steam  to  be  generated 
and  retained  wnthin  the  said  boiler,  during  the  time  the  said 
boiler  was  used  and  employed  for  the  purpose  aforesaid,  accord- 
ing to  the  strength  and  within  the  capacity  of  the  said  boiler. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that 
the  said  Henry  Robert  Heasman,  on  the  day  aforesaid,  in  the 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid, 
and  within  the  jurisdiction  of  the  said  court,  so  having  the 
care,  charge,  management,  and  control  of  the   said    boiler  as 
aforesaid,  did    wilfully  and   feloniously  neglect   and    omit    to 

(<)  2  Cox,  C.  C.      App.  p.  c. 

163 


(173)  OFFENCES    AGAINST    THE    PERSON. 

regulate  the  quantity  and  amount  of  steam  then  and  there 
being  generated  and  retained  in  the  said  boiler,  according  to 
the  strength  and  within  the  capacit}'  of  tlie  said  boiler,  and  did 
then  and  there  wilfully,  negligentlj',  and  feloniously  permit  and 
sutier  a  much  larger  amount  of  steam,  to  wit,  ten  thousand 
cubic  feet  of  steam,  to  be  generated  and  retained  within  the 
said  boiler,  than  the  said  boiler  was  strong  enough  to  contain 
and  bear,  and  capable  of  containing  and  bearing,  and  that  tlie 
said  Henry  Robert  Heasman  did  then  and  tliere,  by  his  said 
negligence  in  so  permitting  and  sufiering  the  said  generation 
and  retention  of  steam  within  the  said  boiler  more  than  the 
said  boiler  was  strong  enough  to  contain  and  bear,  and  capable 
of  containing  and  bearing  as  aforesaid,  unlawfully  and  feloni- 
ously cause  the  said  boiler  to  burst,  and  did  then  and  there,  by 
means  of  the  said  bursting  of  the  said  boiler,  with  force  and 
arms,  unlawfully  and  feloniously  make  an  assault  upon  one 
Thomas  Shed,  the  younger,  on  board  the  said  steamboat  then 
and  there  lawfully  being,  and  the  said  Thomas  Shed  down  upon 
and  against  the  planks,  iron,  and  timbers  of  the  said  steam- 
boat, called  the  "Cricket,"  then  and  there  unlawfully  and 
feloniously  did  cast  and  throw,  thereby  then  and  there  giving 
to  the  said  Thomas  Shed  one  mortal  fracture  of  his  skull,  of 
which  said  mortal  fracture  of  his  skull  the  said  Tliomas  Shed 
then  and  there  died.  And  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  Henry  Robert  Heasman,  on 
the  day  aforesaid,  in  the  year  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  the  said  Thomas  Shed,  in  manner  aforesaid,  unlawfully 
and  feloniously  did  kill  and  slay,  against  the  peace,  etc. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  Henry  Robert  Heasman,  afterwards,  to 
wit,  on  the  day  aforesaid,  in  the  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction 
of  the  said  court,  being  then  and  there  the  engineer  in  and  on 
board  the  said  steamboat  called  the  "Cricket,"  then  and  there 
floating  on  the  waters  of  the  said  river  called  the  Thames, 
there  situate,  and  on  board  which  said  steamboat  there  w^ere 
164 


HOMICIDE.  (1'73) 

then  and  there  divers  large  numbers  of  her  majesty's  liege  sub- 
jects, as  the  said  Henry  Robert  Heasman  then  and  there  well 
knew,  had  and  took  upon  himself,  as  such  engineer  as  aforesaid, 
the  care,  charge,  management,  and  control  of  a  certain  steam- 
engine  and  boiler,  then  and  there  being  in  and  on  board  the 
said  steamboat,  and  in  which  the  said   last  mentioned  boiler 
there  were  then  and   there  divers  large  quantities  of  boiling 
water,  for  the  purpose  of  generating  steam,  and  thereby  work- 
ins;  the  said  eno-ine,  and  that  it  then  and  there  became  and  was 
the  duty  of  the  said  Henry  Robert  Heasman  then  and  there  so 
to  regulate,  manage,  and  control  the  said  last  mentioned  boiler 
as  that  all  the  surplus  quantity  of  steam  generated  and  made 
within  the  said  last  mentioned  boiler,  beyond  such  quantity  of 
steam  as  the  said  last  mentioned  boiler  was  capable  of  contain- 
ing, bearing,  and  retaining,  might,  from  time  to  time,  and  at 
all  times,  so  often  as  might  be  necessary,  escape  from  and  out 
of  the  said  last  mentioned  boiler,  through  and  by  means  of  cer- 
tain, to  wit,  four,  safety-valves,  which   were  then  and   there 
made  and   constructed  in  the  said   last  mentioned  boiler,  for 
such   puri)Ose,  as  the  said   Henry  Robert  Heasman  then  and 
there  well  knew.     And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Henry  Robert  Heas- 
man, on  the  day  and  year  last  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  so  then  and  there  having  the  care,  charge,  management, 
and  control  of  the  said  last  mentioned  boiler,  as  last  aforesaid, 
did  then  and  there  wilfully  and  feloniously  neglect  to  regulate 
the  quantity  and  amount  of  steam  then  and  there  generated 
and  contained   within  the  said   last   mentioned   boiler  as  last 
aforesaid,  and   did   then  and   there  negligently,  wilfully,  and 
feloniously  permit  and  sutler  a  larger  quantity  and  amount  of 
steam   to  be  accumulated,  confined,  and   retained    within    the 
said  last  mentioned  boiler  than  the  said   last  mentioned   boiler 
was  capable  of  containing  and   bearing,  whereby'  it  then  and 
there   became  and  was  necessary  that   the  said   last  mentioned 
steam  should  escape  from  and  out  of  the  said  last  mentioned 
boiler,  through  and  by  means  of  the  said  safety-valves,  or  one 
of  them.     And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  the  said  Henry  Robert  Heasman,  well 

165 


(173)  OFFENCES   AGAINST    THE    PERSON. 

knowing  the  premises,  wilfully  and  feloniously  did  neglect  so 
to  regulate,  manage,  and  control  the  said  last  mentioned  boiler, 
as  that  the  said  last  mentioned  steam  could  escape  from  and  out 
of  the  said  last  mentioned  boiler,  through  and  by  means  of  the 
said  four  safety-valves,  or  one  of  them,  and  did  then  and  there 
by  means  of  his  said  negligence,  as  in  this  count  aforesaid, 
unlawfully  and  feloniously  cause  the  said  last  mentioned  boiler 
to  hurst,  and  did  then  and  there,  by  means  of  the  said  last 
mentioned  bursting  of  the  said  boiler,  with  force  and  arms, 
unlawfully  and  feloniously  make  an  assault  upon  the  said 
Thomas  Shed,  and  the  said  Thomas  Shed,  down  upon  and 
against  the  planks,  iron,  and  timbers  of  the  said  steamboat, 
called  the  "Cricket,"  then  and  there  unlawfully  and  feloniously 
did  cast  and  throw,  thereby  then  and  there  giving  to  the  said 
Thomas  Shed  one  mortal  fracture  of  his  skull,  of  which  said 
last  mentioned  mortal  fracture  the  said  Thomas  Shed  then  and 
there  died.  And  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  say,  that  the  said  Henry  Robert  Heasman,  on  the  day 
and  year  last  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  the 
said  Thomas  Shed,  in  manner  last  aforesaid,  unlawfully  and 
feloniously  did  kill  and  slay,  against  the  peace,  etc. 

Third  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  the  said  Henry  Robert  Heasman,  afterwards, 
to  wit,  on  the  day  aforesaid,  and  in  the  year  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  being  then  and  there  the  engineer  in 
and  on  board  the  said  steamboat  called  the  "  Cricket,"  then  and 
there  floating  on  the  waters  of  a  certain  river  called  the  Thames, 
there  situate,  and  in  and  on  board  which  said  steamboat  there 
were  then  and  there  divers  large  numbers  of  her  majesty's  liege 
subjects,  as  the  said  Henry  Robert  Heasman  then  and  there  well 
knew,  was  intrusted  with,  and  then  and  there  took  upon  him- 
self, as  such  engineer  as  aforesaid,  the  care,  charge,  management, 
and  control  of  a  certain  steam-engine  and  boiler,  then  and  there 
being  in  and  on  board  the  said  steamboat,  and  in  which  said 
last  mentioned  boiler  there  were  then  and  there  divers  large 
166 


HOMICIDE.  (173) 

quantities  of  water,  by  the  boiling  of  which  water  divers  large 
quantities  of  steam  were  then  and  there  continually  ascending 
and  arising,  and  being  generated  and  made  within  the  said  last 
mentioned  boiler,  and  that  the  said  last  mentioned  boiler  was 
then  and  there  made  and  constructed  with,  and  then  and  there 
had  certain,  to  wit,  four,  safety-valves  and  openings,  through 
which  all  such  steam  within  the  said  last  mentioned  boiler,  so 
being  generated  and  made  as  last  aforesaid,  beyond  such  steam 
as  the  said  last  mentioned  boiler  was  capable  of  holding  and 
containing,  and  was  strong  enough  to  hold  and  contain,  might 
and  could  and  would,  from  time  to  time,  escape  and  find  vent 
from  and  out  of  the  said  last  mentioned  boiler,  without  hurt  or 
damage  to  any  of  her  majesty's  liege  subjects ;  all  which  pre- 
mises the  said  Henry  Robert  Ileasman  then  and  there  well  knew. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  farther 
say,  that,  on  the  day  and  year  last  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  and  whilst  divers  large  quantities  of  steam  were 
being  generated  and  made  in  the  said  last  mentioned  boiler,  as 
in  this  count  aforesaid,  the  said  Henry  Robert  Heasman  wil- 
fully and  feloniously  did  close,  tie  down,  fasten,  and  keep  closed, 
tied  down,  and  fastened,  the  said  four  safety-valves  of  the  said 
last  mentioned  boiler,  and  by  such  closing,  tying  down,  and 
fastening,  and  keeping  closed,  tied  down,  and  fastened,  the  said 
safety-valves,  did  then  and  there  hinder  and  prevent  the  said 
steam,  so  being  generated  and  made  in  the  said  last  mentioned 
boiler  as  last  aforesaid,  from  then  and  there  escaping  and  find- 
ing vent  from  and  out  of  the  said  last  mentioned  boiler,  as  it 
might  and  ought  and  otherwise  would  then  and  there  have 
done,  and  thereby  and  by  means  of  the  premises  in  this  count 
aforesaid,  the  said  Henry  Robert  Heasman  did  then  and  there 
unlawfully  and  feloniously  cause  the  said  last  mentioned  boiler 
to  burst,  and  did  then  and  there,  and  by  the  means  last  afore- 
said, with  force  and  arms,  unlawfully  and  feloniously  make  an 
assault  upon  the  said  Thomas  Shed,  and  the  said  Thomas  Shed, 
down  upon  and  against  the  planks,  iron,  and  timbers  of  the  said 
steamboat,  called  the  "  Cricket,"  then  and  there  unlawfully  and 
feloniously  did  cast  and  throw,  thereby  then  and  there  giving 
to  the  said  Thomas  Shed  one  mortal  fracture  of  his  skull,  of 

167 


(173)  OFFENCES    AGAINST    THE    PERSON. 

which  said  last  mentioned  mortal  fracture  the  said  Thomas 
Shed  then  and  there  died.  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  said  Henry  Robert  Heas- 
man,  on  the  day  and  year  last  aforesaid,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  the  said  Thomas  Shed,  in  manner  last  aforesaid,  unlaw- 
fully and  feloniously  did  kill  and  slay,  against  the  peace,  etc. 

Fourth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  Henry  Robert  Heasman,  afterwards,  to 
wit,  on  the  day  aforesaid,  and  in  the  year  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  being  such  engineer  as  aforesaid,  was 
intrusted  with,  and  then  and  there  took  upon  himself,  the  care, 
mangement,  and  control  of  a  certain  steam  engine  and  boiler, 
then  and  there  being  in  the  said  steamboat  called  the  "  Cricket," 
in  whicli  said  last  mentioned  boiler  there  was  then  and  there  a 
large  quantity,  to  wit,  ten  thousand  cubic  feet,  of  steam,  and  it 
then  and  there  became  and  was  the  duty  of  the  said  Henry 
Robert  Heasman  to  provide  for  and  secure  the  escape  of  a  cer- 
tain quantity,  to  wit,  five  thousand  cubic  feet,  of  the  said  steam, 
from  and  out  of  the  said  last  mentioned  boiler,  in  order  to  pre- 
vent the  bursting  of  the  said  last  mentioned  boiler  from  the 
pressure  of  the  said  steatn.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  the  said  Henry 
Robert  Heasman,  well  knowing  the  premises,  but  wilfull}-  and 
feloniously  neglecting  his  duty  in  that  behalf,  did  not  then  and 
there  provide  for  or  secure  the  escape  of  the  said  part  of  the 
said  steam  from  and  out  of  the  said  last  mentioned  boiler,  but, 
on  the  contrary  thereof,  wilfully,  negligently,  and  feloniously 
did  permit  and  suffer  the  said  quantity,  to  wit,  ten  thousand 
cubic  feet,  of  steam  to  be  and  remain  in  the  said  last  mentioned 
boiler,  by  moans  of  the  retention  of  which  said  steam  in  the 
said  last  mentioned  boiler,  and  the  pressure  thereof,  the  said 
last  mentioned  boiler  did  then  and  there  burst  and  explode, 
and,  by  force  of  the  said  bursting  and  explosion,  the  said 
Thomas  Shed,  then  and  there  lawfully  being  on  board  of  the 
said  steamboat,  was  then  and  there  thrown  and  cast  down  upon 
lt>8 


HOMICIDE.  (17^3) 

and  against,  the  planks,  iron,  and  timbers  of  the  said  steamboat, 
by  whicli  said  throwing  and  casting  of  the  said  Thomas  Shed 
down  upon  and  against  the  phmks,  iron,  and  timbers  of  the 
said  steamboat,  in  manner  last  aforesaid,  the  said  Henry  Robert 
Heasman  did  then  and  there  wilfully  and  feloniously  give  to 
the  said  Thomas  Shed  one  mortal  fracture  of  his  skull,  of  which 
last  mentioned  mortal  fracture  the  said  Thomas  Shed  then  and 
there  died.  And  so  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  say,  that  the  said  Henry  Robert  Heasman,  on  the  day 
and  year  last  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  the  said 
Thomas  Shed,  in  manner  last  aforesaid,  unlawfully  and  feloni- 
ously did  kill  and  slay  ;  against  the  peace,  etc. 

Fifth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  Henry  Robert  Heasman,  afterward,  to  wit, 
on  the  day  aforesaid,  in  the  year  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  did  wilfully  and  feloniously  close,  tie  down,  and 
fasten,  and  did  keep  closed,  tied  down,  and  fastened,  certain,  to 
wit,  four,  safety-valves  of  a  certain  boiler,  in  which  said  last 
mentioned  boiler  divers  large  quantities,  to  wit,  ten  thousand 
cubic  feet,  of  steam,  beyond  such  quantity  of  steam  as  the  said 
last  mentioned  boiler  was  capable  of  bearing,  were  then  and 
there  accumulated,  confined,  and  retained,  and  that  thereby,  and 
by  means  of  the  premises  in  this  count  mentioned,  the  said 
Henry  Robert  Heasman  did  then  and  there  unlawfully  and 
feloniously  cause  the  said  last  mentioned  boiler  to  burst,  and 
did  then  and  there,  and  by  the  means  last  aforesaid,  with  force 
and  arms,  unlawfully  and  feloniously  make  an  assault  upon  the 
said  Thomas  Shed,  and  the  said  Thomas  Shed,  down  u[)on  and 
against  the  planks,  iron,  and  timbers  of  a  certain  steamboat 
called  the  "Cricket,"  then  and  there  being,  then  and  there  un- 
lawfully and  feloniously  did  cast  and  throw,  thereby  then  and 
there  giving  to  the  said  Thomas  Shed  one  mortal  fracture  of  his 
skull,  of  which  said  last  mentioned  mortal  fracture  the  said 
Thomas  Shed  then  and  there  died.  And  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  Henry  Robert 

169 


(173)  OFFENCES    AGAINST   THE    PERSON. 

Heasman,  on  the  day  and  year  last  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  and  within  the  jurisdiction  of  the 
said  court,  the  said  Thomas  Shed,  in  manner  last  aforesaid,  un- 
lawfully and  feloniously  did  kill  and  slay;  against  the  peace,  etc. 

Sixth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  Henry  Kobert  Heasman,  afterwards,  to 
wit,  on  the  day  aforesaid,  in  the  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction 
of  the  said  court,  did  wilfully  and  feloniouslj',  by  causing  to  be 
made  and  generated  within  a  certain  boiler,  and  by  keeping  and 
retaining  within  the  said  last  mentioned  boiler  divers  large 
quantities,  to  wit,  ten  thousand  cubic  feet,  of  steam  more  than 
the  said  last  mentioned  boiler  was  strong  enough  and  able  to 
contain  and  bear,  cause  the  said  last  mentioned  boiler  to  burst, 
and  did  then  and  there,  and  by  the  means  last  aforesaid,  with 
force  and  arms,  unlawfully  and  feloniously  make  an  assault 
upon  the  said  Thomas  Shed,  and  the  said  Thomas  Shed,  down 
upon  and  against  the  planks,  iron,  and  timbers  of  a  certain 
steamboat  called  the  "Cricket,"  then  and  there  being,  then  and 
there  unlawfully  and  feloniously  did  cast  and  throw,  thereby 
then  and  there  giving  to  the  said  Thomas  Shed  one  mortal  frac- 
ture of  his  skull,  of  which  said  last  mentioned  mortal  fracture 
the  said  Thomas  Shed  then  and  there  died.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  Henry 
Robert  Heasman,  on  the  day  and  year  last  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  the  said  Thomas  Shed,  in  manner  last 
aforesaid,  unlawfully  and  feloniously  did  kill  and  slay;  against 
the  peace,  etc. 

Seventh  count. 

{Charges  an  assault  in  other  terms.) 
170 


HOMICIDE.  (1"74-) 

(174)  Against  agent  of  company  for  neglecting  to  give  a  proper  sig- 
nal to  denote  the  obstruction  of  a  line  of  railway,  whereby  a 
collision  took  place  and  a  passenger  was  Jcilled.{u) 

The  jurors,  etc.,  upon  their  oath  present,  that  before  and  at 
the  time  of  committini^  the  felony  hereinafter  mentioned, 
George  Pargeter,  late  of  the  parish  of  Shrivenham,  in  the 
county  of  Berks,  laborer,  on  the  eleventh  day  of  May,  in  the 
year  of  our  Lord  at  the  parish  aforesaid,  in  the  county 

of  Berks  aforesaid,  was  a  servant  and  policeman  in  the  service 
and  employ  of  a  certain  company,  to  wit,  the  Great  Western 
Railway  Company,  in  and  upon  a  certain  railway,  to  wit,  the 
Great  Western  Railway.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  before  and  at  the  time 
of  committing  the  said  felony,  certain  signal  posts  had  been  and 
were  erected  by  the  said  company  near  to  certain  stations  upon 
the  said  railway,  for  the  purpose  of  making  signals  for  the 
regulation,  guidance,  and  warning  of  the  drivers  of  locomotive 
engines  attaclied  to  and  drawing  the  trains  of  carriages  travel- 
ling upon  and  along  the  said  railway,  which  said  signals  were 
sufficient  and  proper  for  the  purposes  aforesaid,  and  were,  at  the 
time  of  the  committing  of  the  said  felony,  in  constant  use  and 
in  full  force  and  eflect,  and  well  known  to  the  said  G.  P.,  to 
wit,  at  the  parish  aforesaid,  in  the  county  of  Berks  aforesaid. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 

(u)  1st.  This  indictment  charges  that  the  prisoner's  duty  was  to  attend  to 
the  proper  working  of  tlie  signals,  according  to  the  rules.  Hehl,  that  it  was  not 
necessary  to  set  out  tlie  rules.  2d.  It  appeared  that  the  prisoner  had  many 
other  duties  besides  attending  to  the  signal  posts,  some  of  them  being  incompat- 
ible with  his  duty  there.  Held,  that  it  was  not  necessary  to  set  forth  all  the  other 
duties,  and  then  to  negative  that  the  prisoner  was  employed  at  the  time  in  the 
discharge  of  either  of  such  other  duties.  3d.  Held,  that  an  averment  that  it 
was  prisoner's  duty  to  signal  an  obstruction,  and  there  was  an  obstruction 
which  prisoner  neglected  to  signal,  was  a  sufficient  description  of  the  otience, 
and  that  it  was  not  necessary  to  aver  tiiat  tlie  prisoner's  duty  was,  if  there  was 
an  obstruction  and  he  saw  it,  to  signal  it,  and  that  there  was  an  obstruction 
which  he  might  have  seen,  but  neglected  to  see.  4th.  That  it  is  sufficient  to 
aver  the  duty  to  be  to  make  a  "proper  signal,"  without  further  describing  it. 
5th.  Tiiat  a  count  which  charged  both  a  neglect  to  give  the  riglit  signal,  and  the 
giving  of  the  wrong  signal,  is  not  bad  for  duplicity.  6th.  That  it  is  sufHcient 
to  charge  "  that  the  prisoner  did  neglect  and  omit  to  alter  the  said  signal," 
without  stating  more  particularly  what  was  the  specific  alteration  wiiich  lie  so 
neglected  to  make.  R.  v.  Pargeter,  3  Cox,  C.  C.  191  ;  see  AVli.  Cr.  L.  8th  ed. 
§S  305,  337,  338,  340. 

171 


(174)  OFFENCES    AGAINST    THE    PERSON. 

present,  that  one  of  such  signals,  in  such  use  and  so  used  as 
aforesaid,  and  known  to  the  said  Gr.  P.  as  aforesaid,  when 
made,  denoted,  and  was  intended  to  denote  and  give  warning 
and  notice  to  the  said  drivers,  that  the  line  of  the  said  railway, 
at  the  station  near  unto  which  the  said  signal  was  made,  was 
then  free  from  obstruction,  and  that  the  driver  of  any  engine 
attached  to  and  drawing  any  train  of  carriages  then  approach- 
ing the  said  station  might  safely  pass  through  the  same,  with 
the  train,  without  stopping,  and  which  said  signal  was  then  and 
there  called  and  known  by  the  name  of  the  "all  right"  signal; 
and  that  one  other  of  such  signals,  so  used  as  aforesaid,  and 
known  to  tlie  said  G.  P.  as  aforesaid,  when  made,  denoted,  and 
was  intended  to  denote  and  give  warning  and  notice  to  the 
said  drivers,  tliat  the  line  of  the  said  railway  near  to  which  the 
said  last  mentioned  signal  was  made,  was  then  obstructed,  and 
that  the  driver  of  any  engine  attached  to  and  drawing  n\^y  train 
of  carriages  then  approaching  the  said  station  could  not  safely 
pass  through  the  same,  with  the  train,  without  stoj^ping,  and 
which  said  last  mentioned  signal  was  then  and  there  called 
and  known  by  the  name  of  the  signal  "  to  stop."  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  certain  rules  and  directions  had  been  and  were  at  the  time 
of  the  committing  of  the  said  felony  established  for  the  guid- 
ance of  the  conduct  of  the  servants  and  policemen  of  the  said 
company,  employed  in  and  upon  the  said  railway,  and  having 
the  care  and  regulation  of  the  said  signals,  and  which  said  rules 
and  regulations  were  sufficient  and  proper  for  the  purposes 
aforesaid,  and  were,  at  the  time  of  committing  the  said  felony, 
in  full  force  and  effect,  and  well  known  to  the  said  G.  P.,  to  wit, 
at  the  parish  aforesaid,  in  the  said  county  of  Berks.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  G.  P.,  on  the  day  and  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  of  Berks  aforesaid,  in  and  upon  one 
Arthur  Augustus  Lea  feloniously  did  make  an  assault  ;  and 
that  the  said  G.  P.,  so  being  such  servant  and  policeman  in  the 
service  and  emiiloyment  of  the  said  Great  Western  Railway 
Company  as  aforesaid,  then  and  there  had,  b}-  virtue  of  such 
his  emplo3'ment,  the  care  and  regulation  of  the  said  signals,  at 
a  certain  signal  post  erected  and  being  near  a  certain  station  on 
172 


HOMICIDE.  (174) 

the  said  line  of  the  said  railway,  to  wit,  the  Shrivenham  Station, 
and  near  the  line  of  the  said  railway  there,  and  that  hefore  and 
on  the  said  eleventh  day  of  May,  in  the  year  afm^esaid,  at  the 
parish  aforesaid,  in  the  county  of  Berks  aforesaid,  it  became 
and  was  the  duty  of  the  said   G.  P.  to  attend  to  the  due  and 
proper  righting,  exhibiting,  and  making  of  the  said  signals  at 
the  said  last  mentioned  station,  and  duly  and  properly  to  work, 
exhibit,  and  make  the  same,  according  to  the  rules  and  regula- 
tions there  established  for  the  guidance  of  the  conduct  of  the 
servants  and  policemen  of  the  said  company,  employed  in  and 
upon  the  said  railway  as  aforesaid.     And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  on  the  day 
and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county  of 
Berks  aforesaid,  a  certain  train  of  carriages  drawn  by  a  locomo- 
tive engine,  under  the  care  and  guidance  of  a  certain  driver 
thereof,  to  wit,  one  Robert   Roscoe,  was  travelling  on  the  said 
railway,  to  wit,  from  Exeter  to  London,  and  was  before  and  at 
the  time  of  the  committing  of  the  felony  by  the  said  G.  P.,  as 
hereinafter  mentioned,  due  at  the  said  Shrivenham  Station,  to 
wit,  at  the  hour  of  three  of  the  clock  in  the  afternoon  of  the 
said  eleventh   day  of  May,  and    was  expected    and  intended, 
according  to  the  time  table  and    regulations  by  the  said  com- 
pany in  that  behalf  established,  to  arrive  and  pass  through  the 
said  Shrivenham  Station  at  the  time  and  hour  last  aforesaid, 
as  the  said  G.  P.  then  and  there  well  knew ;  and  that  the  said 
G.  P.  had    then   and    there,  in  expectation  of   the   arrival   of 
the  said  last  mentioned  train  of  carriages,  made  and   turned  on 
the  signal  called  the  ''all  right"  signal.     And  the  jurors  afore- 
said, upon  their  oath   aforesaid,  do  further  present,  that  after- 
wards, and  before  the  arrival  of  the  said  last  mentioned  train  of 
carriages  at  the  Shrivenham   Station,  to  wit,  on  the  day  and 
year  aforesaid,  at  the  parish  aforesaid,  in  the  county  of  Berks 
aforesaid,  a  certain  carriage,  to  wit,  a  horse  box,  was  put  and 
placed  and  continued,  and  was  upon  and  across  and  obstructing 
the  same  line  of   rails  of   the  said  railway,  near  to  the  said 
Shrivenham  Station,  as  that  on  which   the  said  last  mentioned 
train  of  carriages  was  then   travelling,  and  it  thereu[)on   then 
and  there,  and  in  consequence  of  such  last  mentioned  obstruc- 
tion, became  and  was  the  duty  of  the  said  G.  P.  to  alter,  remove, 

173 


(174)  OFFENCES    AGAINST    THE   PERSON. 

and  turn  off  the  said  signal  called  the  "  all  right"  signal,  and  to 
make,  turn  on,  and  keep  made  and  turned  on,  the  said  signal 
called  the  signal  "  to  stop."  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  the  said  G.  P.,  then  and 
there  heing  wholly  unmindful  and  neglectful  of  his  duty  in  that 
behalf,  at  the  time  and  place  last  aforesaid,  on  the  day  and  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  of  Berks  afore- 
said, with  force  and  arras,  unlawfully  and  feloniously  did  neglect 
and  omit  to  alter,  remove,  and  turn  off  the  said  signal  called 
the  "  all  right"  signal,  and  did  then  and  there  unlawfully  and 
feloniously  neglect  and  omit  to  make,  turn  on,  and  keep  made 
and  turned  on,  the  said  signal  called  the  signal  "  to  stop."  By 
means  of  which  said  several  premises,  and  of  the  said  felonious 
omissions  and  neglect  by  the  said  G.  P.  as  aforesaid,  the  driver 
of  the  engine  attached  to  the  said  last  mentioned  train  of 
carriages,  to  wit,  the  said  R.  P.,  was  induced  to  believe,  and 
did  believe,  that  the  line  of  rails  of  the  said  railway,  upon 
which  the  last  mentioned  train  of  carriages  was  then  travelling, 
was  then  all  clear  and  without  obstruction,  and  that  the  said 
driver,  to  wit,  the  said  P.  P.,  might  then  safely  pass  through  the 
said  Shrivenham  Station  with  the  last  mentioned  engine  and 
train  of  carriages  without  stopping ;  and  the  said  driver,  to  wit, 
the  said  P.  P.,  acting  upon  such  belief  as  aforesaid,  did  there- 
upon, on  the  day  and  year  aforesaid,  at  the  parish  aforesaid,  in 
the  county  of  Berks  aforesaid,  drive  the  said  engine,  so 
attached  to  and  drawing  the  last  mentioned  train  of  carriages 
as  aforesaid,  through  the  said  Shrivenham  Station,  and,  in  so 
drawing  the  said  last  mentioned  train  of  carriages,  did  then 
and  there  unavoidably,  and  without  any  fault  or  default  of  the 
said  P.  P.,  with  great  force  come  into  violent  contact  and  col- 
lision with  the  said  carriage,  called  a  horse  box,  then  being  on, 
upon,  and  across  and  obstructing  the  same  line  of  rails  of  the 
said  railway  as  that  on  which  the  said  last  mentioned  train  of 
carriages  was  then  travelling,  near  to  the  said  Shrivenham 
Station  there,  by  means  of  which  said  contact  and  collision, 
caused  and  occasioned  as  aforesaid,  the  said  A.  A.  L,,  then  law- 
fully being  and  travelling  in  one  of  the  carriages  of  the  said 
last  mentioned  train  of  carriages,  Avas  then  and  there  violently 
and  iforcibly  thrown  on  and  against  the  back  and  sides  of  the 
174  •  "' 


HOMICIDE.  (174) 

said  carnage  in  which  he  was  so  travelling  as  aforesaid,  and 
was  then  and  there  violently  and  forcibly  cast  and  thrown  from 
and  out  of  the  said  carriage  in  which  he  was  so  travelling  as 
aforesaid,  down  to  and  upon  the  ground  there ;  by  means  of 
which  said  casting  and  throwing  of  the  said  A.  A.  L.,  as  well 
to  and  against  the  sides  and  back  of  the  said  carriage  in  which 
he  was  so  travelling  as  aforesaid,  as  from  and  out  of  the  said 
carriage,  down  to  and  upon  the  ground  there  as  aforesaid,  the 
said  A.  A.  L.  then  and  there  had  and  received,  and  the  said  G. 
P.  then  and  there  feloniously  did  give  and  cause  to  be  given  to 
the  said  A.  A.  L.  divers  mortal  wounds,  bruises,  and  contusions, 
in  and  upon  the  head,  body,  arms,  and  legs  of  the  said  A.  A. 
L.,  and  divers  mortal  fractures  of  both  the  legs  of  the  said  A. 
A.  L.,  and  divers  mortal  ruptures  of  the  bloodvessels  in  and 
upon  the  brain  of  the  said  A.  A.  L.,  of  which  said  mortal 
wounds,  bruises,  and  contusions,  mortal  fractures,  and  mortal 
ruptures  of  the  said  A.  A.  L.,  on  and  from  the  said  eleventh 
day  of  May,  in  the  year  aforesaid,  as  well  at  the  parish  of 
Shrivenham  aforesaid,  in  the  county  of  Berks  aforesaid,  as  at 
the  parish  of  Swindon,  in  the  county  of  Wilts,  did  languish, 
and  languishing  did  live,  and  there,  to  wit,  on  the  day  and  year 
last  aforesaid,  at  the  parish  of  iSwindon  aforesaid,  in  the  county 
of  Wilts  aforesaid,  of  the  said  mortal  wounds,  bruises,  and  con- 
tusions, mortal  fractures,  and  mortal  ruptures,  did  die.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  G.  P.,  in  manner  and  form  aforesaid,  the  said  A.  A.  L., 
at  the  parish  of  Swindon  aforesaid,  in  the  county  of  Wilts 
aforesaid,  feloniously  did  kill  and  slay,  against  the  peace,  etc. 

Second  count. 

The  second  count  states,  that  "  it  was  the  duty  of  the  said  G. 
P.,  as  such  servant  and  policeman  as  aforesaid,  to  make  certain 
signals  to  the  drivers  of  locomotive  engines  attached  to  and 
drawing  or  propelling  trains  travelling  upon  and  along  the  said 
railway,  and  passing  along  the  same  at  a  certain  part  thereof,  to 
wit,  near  a  certain  station,  to  wit,  the  said  Shrivenham  Station, 
to  wit,  at  the  parish  of  Shrivenham  aforesaid,  in  the  county  of 
Berks  aforesaid,  for  the  purpose  of  giving  warning  and  notice 
to  the  said  drivers,  whether  the  line  of  rails  on  the  said  railway 
*  175 


(174)  OFFENCES    AGAINST    THE    PERSON. 

on  and  upon  which  any  such  locon^otive  engine  and  train  of 
carriages  as  aforesaid,  should  or  might  be  passing  at,  near,  and 
through  the  said,  Shrivenham  Station,  was  free  of  obstruction 
or  not,  of  all  which  the  said  G.  P.,  at  the  time  of  the  committing 
of  the  said  felony,  had  full  knowledge  and  notice,  to  wit,  at  tiie 
day  and  year  last  aforesaid,  at  the  parish  last  aforesaid,  in  the 
county  of  Berks  aforesaid."  It  then  proceeds  to  aver  that  a 
train  was  travelling  on  the  line,  "on  and  along  the  part  of  the 
said  railway  which  lies  in  the  said  parish,  etc.,  and  up  to  and 
towards  the  place  wdiere  it  was  the  duty  of  the  said  G.  P.  to 
make  such  signals  as  aforesaid,"  and  that  just  before  the  time 
of  its  arrival  at  the  said  place,  "there  was  a  certain  obstruction 
on  and  upon  the  same  line  of  rails  as  that  upon  which  the  said 
last  mentioned  locomotive  engine  and  train  was  travelling,  to 
wit,  a  certain  horse  box,  standing,  and  being  upon  and  across 
the  said  last  mentioned  line  of  rails,  near  to  the  place  Avhere  it 
was  the  duty  of  the  said  G.  P.  to  make  such  signals  as  last 
aforesaid,  to  wnt,  at  the  parish  last  aforesaid,  in  the  county  of 
Berks.  And  the  said  G.  P.  could,  and  might,  and  ought,  then 
and  there,  to  wit,  at  the  parish  last  aforesaid,  in  the  county  of 
Berks,  on  the  said  eleventh  day  of  May,  in  the  year  aforesaid, 
in  the  course  of  his  duty,  and  in  the  exercise  of  reasonable  and 
proper  skill  and  diligence,  to  have  given  warning  and  notice  by 
means  of  the  proper  signal  to  the  driver  of  the  said  last  men- 
tioned locomotive  engine,  attached  to  and  drawing  the  last 
mentioned  train  of  carriages,  to  wit,  the  said  R.  P.,  that  there 
was  then  such  obstruction  as  last  aforesaid,  in  and  upon  the 
said  line  of  rails,  to  wit,  the  said  horse  box.  And  the  jurors, 
etc.,  do  further  present,  that  the  said  G.  P.,  then  and  there  being 
wholly  unmindful  and  neglectful  of  his  duty  in  that  behalf,  on, 
etc.,  at  the  parish,  etc.,  with  force  and  arms,  unlawfully  and 
feloniously  did  neglect  and  omit  to  give  notice  and  warning,  by 
means  of  the  proper  signal,  to  the  driver  of  the  last  mentioned 
locomotive  engine  attached  to  and  drawing  the  said  last  men- 
tioned train  of  carriages,  to  wit,  the  said  R.  P.,  that  there  was 
an  obstruction  u]»on  the  same  line  of  rails  as  that  on  which  the 
said  last  mentioned  train  of  carriages  was  then  travelling,  by 
means  of  which,"  etc. 
176 


HOMICIDE.  (174) 

Tldrd  count. 

The  third  count  states  the  averment  of  the  sio^nals,  and  of  the 
prisoner's  duty,  thus:  Reciting,  that  the  said  G.  P.  was  in  the 
employ,  etc.,  as  a  policeman,  and  that  "  for  the  safe  and  proper 
working  and  travelling  of  the  several  trains  of  carriages  and 
locomotive  engines  proceeding  along  and  upon  the  said  railway, 
certain  signals  had  been  and  were  at  the  time  of  the  committing 
of  the  offence  by  the  said  G.  P.,  as  hereinafter  mentioned,  estab- 
lished by  the  said  company  at  and  near  a  certain  station  upon 
the  said  railway,  and  at  and  near  the  said  station,  to  wit,  the 
Shrivenham  Station,  at  which  the  said  G.  P.  was  employed  as 
aforesaid,  and  were  well  known  to  the  said  G.  P.,  to  wit,  at  the 
parish  last  aforesaid,  in  the  county  of  Berks  aforesaid.  And 
the  jurors,  etc.,  do  further  present,  that  on  the  said,  etc.,  at  the 
parish,  etc.,  the  said  G.  P.  had  the  care  and  control  of  the  said 
signals,  at  the  said  station,  to  wit,  the  Shrivenham  Station,  at 
which  the  said  G.  P.  was  so  employed  as  servant  or  policeman 
as  aforesaid,  and  it  then  and  there  became  and  was  the  duty  of 
the  said  G.  P.,  by  virtue  of  such  his  employment  as  aforesaid, 
from  time  to  time,  and  at  all  times,  as  occasion  might  require, 
to  make  due  and  proper  signals  to  the  drivers  of  all  locomotive 
engines  travelling  along  and  upon  the  said  railway,  and  enter- 
ing the  said  station,  to  wit,  the  Shrivenham  Station."  The  count 
then  proceeds  to  set  forth,  that  a  train  was  travelling  on  the 
said  line  of  railway,  that  a  horse  box  had  been  placed  upon  and 
across  it  so  as  to  obstruct  the  passage  of  the  train,  "and  that  it 
thereupon  then  and  there  became  the  duty  of  the  said  G.  P.  to 
indicate  by  proper  signals  to  the  driver  of  the  said  last  men- 
tioned train  of  carriages  so  due  and  about  to  enter  and  pass 
through  the  said  last  mentioned  station  as  aforesaid,  that  the 
line  of  rails  of  the  said  railway  upon  which  the  said  last  men- 
tioned train  of  carriages  were  then  travelling,  was  there  ob- 
structed. And  the  jurors,  etc.,  do  further  present,  that  the 
said  G.  P.  afterwards,  to  wit,  on  the  day,  etc.,  at  the  parish,  etc., 
wholly  neglecting  his  duty  in  that  behalf,  with  force  and  arms, 
unlawfully  and  feloniously  did  neglect  and  omit  to  indicate  by 
proper  signals  to  the  driver  of  the  said  last  mentioned  train  of 
carriages  so  travelling  upon  the  said  railway  as  aforesaid,  and 
VOL.  I.— 12  177 


(175)  OFFENCES    AGAINST    THE    PERSON. 

eo  due,  and  about  to  enter  and  pass  through  the  said  last  men- 
tioned station  as  aforesaid,  that  the  line  of  rails  of  the  said 
railway  upon  which  the  said  last  mentioned  train  of  carriages 
M'as  then  travelling,  was  then  obstructed,  but  on  the  contrary 
thereof,  the  said  G.  P.,  then  and  there,  unlawfully  and  feloniously 
did  indicate  by  signals  to  the  driver  of  the  said  last  mentioned 
train  of  carriages,  that  the  line  of  rails  of  the  said  railway,  on 
which  the  said  last  mentioned  train  of  carriages  was  then 
travelling,  at  or  near  the  said  last  mentioned  station,  was  then 
all  clear  and  free  from  obstructions,  by  means  of  which  several 
premises  and  the  said  felonious  omissions  and  neglects  of  the 
said  G.  P.,"  etc.  etc. 

[The  fourth  count  was  a  common  count  for  manslaughter^  by 
assaulting^  heating^  and  bruising^  etc.'] 

(175)  Against  the  driver  and  stoker  of  a  railway  engine,  for  negli- 
gently driving  against  another  engine,  whereby  the  deceased, 
met  his  death.{v) 

The  jurors,  etc.,  upon  their  oath  present,  that  S.  H.,  late  of  the 
parish  of  Richmond,  in  the  county  of  Surrey,  laborer,  and  W. 
W.,  late  of  the  same  place,  laborer,  on  the  seventeenth  day  of 
November,  in  the  year  of  our  Lord  with  force  and  arms, 

at  the  parish  aforesaid,  in  the  county  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  in  and  upon  R.  P.  feloniously  and 
wilfully  did  make  an  assault.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  before  and  on  the 
said  seventeenth  day  of  November,  the  said  S.  H.  was  employed 
by  a  certain  body  corporate,  to  wit,  the  London  and  South- Wes- 
tern Railway  Company,  for  the  purpose  of  conducting,  driving, 
managing,  and  controlling  certain  locomotive  steam-engines 
belonging  to  the  said  London  and  South- Western  Railway  Com- 
pany, and  that  tlie  said  W.  W.,  before  and  on  the  da}^  and  year 
aforesaid,  was  employed  by  the  London  and  South-Western 
Railway  Company,  for  the  purpose  of  assisting  the  said  S.  H. 
in  the  conducting,  driving,  management,  and  control  of  such 
locomotive  steam-engines  as  aforesaid,  and  that,  by  virtue  of 
such  their  respective  employments,  the  said  S.  IT.  was,  on  the 

(f)  3  Cox,  C.  C.  Appendix,  p.  Ivii. 

178 


HOMICIDE.  (1-75) 

day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  con- 
ductino;  and  drivino*,  and  then  and  there  had  the  manascement 
and  control  of  a  certain  locomotive  steam-engine,  to  and  behind 
■which  a  certain  carriage,  called  a  tender,  was  then  and  there 
attached,  and  which  said  locomotive  steam-engine  and  tender 
were  then  and  there  the  property  of  and  belonging  to  the  said 
London  and  South-Western  Railway  Company,  and  were  then 
and  there  in  and  upon  a  certain  side  line  of  railway  leading  into 
and  upon  a  certain  main  line,  to  wit,  the  Richmond  Railway, 
and  the  said  W.  "W.  was  then  and  there,  the  said  S.  H.,  in  and 
about  the  said  conducting,  driving,  management,  and  control  of 
the  said  locomotive  steam-engine  and  tender,  aiding  and  assist- 
ing, and  that  it  then  and  there  became  and  was  the  duty  of  the 
said  S.  H.  and  of  the  said  W.  W".,  by  virtue  of  their  said  em- 
ployment, not  to  conduct  or  drive,  or  suffer  or  permit  to  be 
conducted  or  driven,  the  said  locomotive  steam-engine  and 
tender  from  and  off  the  said  line  of  railway,  into,  upon,  or 
across  the  said  main  line  of  railway,  in  case  any  train  or  engine 
should  be  then  due,  and  about  to  arrive  at  that  part  of  the  said 
main  line  of  railway  where  the  same  was  joined  by  the  said  line 
of  railway  aforesaid  ;  yet  the  said  S.  H.  and  the  said  W.  "W., 
well  knowing  the  premises,  and  well  knowing  that  a  certain 
train,  to  wit,  a  train  consisting  of  a  certain  other  locomotive 
steam-engine,  with  a  certain  other  tender,  and  divers,  to  wit, 
twenty,  carriages  attached  thereto  and  drawn  thereby,  was  then 
and  there  lawfully  travelling,  and  being  propelled  on  and  along 
the  said  main  line  of  railway,  and  was  then  due  and  about  to 
arrive  at  that  part  of  the  said  main  line  of  railway  where  the 
same  was  joined  by  the  side  line  of  railway  aforesaid  ;  but  dis- 
regarding their  duty  in  that  behalf,  did,  on  the  day  and  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  wilfully  and  feloni- 
ously, and  with  great  force  and  violence,  and  in  a  wanton,  negli- 
gent, and  improper  manner,  and  contrary  to  their  said  duty  in 
that  behalf,  and  while  the  said  train  was  so  then  and  there  due, 
and  about  to  arrive  as  aforesaid,  conduct  and  drive,  and  suffer 
and  permit  to  be  conducted  and  driven,  the  said  first  mentioned 
locomotive  steam-engine  and  tender  from  and  off  the  said  line 

179 


(175)  OFFENCES  AGAINST  THE  PERSON. 

of  railway,  into,  upon,  and  across  the  said  main  line  of  railway, 
and  into,  upon,  and  against  the  said  train  so  then  and  there  law- 
fully travelling  and  being  propelled  on  and  along  the  said  main 
line  of  railway  as  aforesaid  ;  and  that  the  said  S.  H.  and  the 
said  W.  W.  did  thereby,  and  by  means  of  the  said  several  prem- 
ises, and  by  reason  of  the  shock  and  concussion  thereby  given 
and  communicated  to  the  said  first  mentioned  locomotive  steam- 
engine,  then  and  there  wilfully  and  feloniously,  and  with  great 
force  and  violence,  push,  force,  dash,  drive,  and  jam,  and  cause 
to  he  pushed,  forced,  dashed,  driven,  and  jammed  in,  upon,  over, 
against,  and  between  a  certain  part  of  the  said  first  mentioned 
locomotive  steam-engine,  to  wit,  the  hinder  part  thereof,  the 
said  R.  P.,  who  was  then  and  there  standing  and  being  in  and 
upon  the  said  first  mentioned  locomotive  steam-engine,  and  did 
then  and  there,  by  means  of  the  pushing,  forcing,  dashing,  and 
driving  and  jamming  aforesaid,  wilfully  and  feloniously  inflict 
and  cause  to  be  inflicted  in  and  upon  the  head,  to  wit,  in  and 
upon  the  right  side  of  the  head  of  the  said  R.  P.,  divers  mortal 
wounds  and  fractures,  and  in  and  upon  the  body,  to  wit,  in  and 
upon  the  back,  sides,  belly,  thighs,  legs,  and  feet  of  the  said  R. 
P.,  divers  mortal  wounds,  bruises,  contusions,  burns,  and  scalds, 
of  which  said  several  mortal  wounds,  fractures,  bruises,  contu- 
sions, burns,  and  scalds,  the  said  R.  P.,  on  the  day  and  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  instantly  died.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  S.  H.  and  the  said  W.  W.,  the  said  R.  P.,  in  the  man- 
ner and  by  the  means  aforesaid,  wilfully  and  feloniously  did 
kill  and  slay,  against  the  peace,  etc. 

Second  count. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  the  parish  of  Richmond, 
in  the  county  of  Surrey,  and  within  the  jurisdiction  of  the  said 
court,  in  and  upon  the  said  R.  P.,  feloniously  and  wilfully  did 
make  an  assault.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  before  and  on  the  day  and 
year  aforesaid,  the  said  S.  H.  was  employed  by  a  certain  corpo- 
180 


HOMICIDE.  (175) 

rate  body,  to  wit,  the  London  and  South -Western  Railway 
Company,  for  the  purpose  of  conducting,  driving,  managing, 
and  controlling  certain  locomotive  steam-engines  belonging  to 
the  said  London  and  South- Western  Railway  Company,  and 
the  said  W.  W.,  before  and  on  the  day  and  year  aforesaid,  was 
employed  by  the  said  London  and  South-Western  Railway 
Company,  for  the  purpose  of  assisting  the  said  S.  H.  in  the  con- 
ducting, driving,  management,  and  control  of  such  locomotive 
steam-engines  as  aforesaid,  and  that  by  virtue  of  such  their  re- 
spective employments,  the  said  S.  H.  was,  on  the  day  and  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  conducting  and  driv- 
ing, and  then  and  there  had  the  management  and  control  of  a 
certain  locomotive  steam-engine,  to  and  behind  which  a  certain 
carriage,  called  a  tender,  was  then  and  there  attached,  and 
which  said  locomotive  steam-engine  and  tender  were  then  and 
there  the  property  of  and  belonging  to  the  said  London  and 
South-Western  Railway  Company,  and  were  then  and  there 
in  and  upon  a  certain  side  line  of  railway,  leading  into  and 
upon  a  certain  main  line  of  railway,  to  wit,  the  Richmond 
Railway,  and  that  the  said  W.  W.  was  then  and  there,  the  said 
S.  H.,  in  and  about  the  said  conducting,  driving,  management, 
and  control  of  the  said  locomotive  steam-engine  and  tender, 
aiding  and  assisting,  and  that  it  then  and  there  became  and 
was  the  duty  of  the  said  S.  H.  and  of  the  said  W.  W.,  by 
virtue  of  their  said  employment,  not  to  conduct  or  drive,  or 
suffer  or  permit  to  be  conducted  or  driven,  the  said  locomotive 
steam-engine  and  tender  from  and  otf  the  said  line  of  railway, 
into,  upon,  or  across  the  said  main  line  of  railw^ay,  in  case  any 
train  or  engine  should  be  then  due  and  about  to  arrive  at  that 
part  of  the  said  main  line  of  railway  where  the  same  was  joined 
by  the  said  line  of  railway  aforesaid;  yet  the  said  S.  H.  and 
the  said  W.  W.,  well  knowing  the  premises,  and  well  knowing 
that  a  certain  train,  consisting  of  another  locomotive  steam- 
engine,  with  a  certain  other  tender,  and  divers,  to  wit,  twenty, 
carriages  attached  thereto,  and  drawn  thereby,  was  then  and 
there  lawfully  travelling  and  being  propelled  on  and  along  the 
said  main  line  of  railway,  and  was  then  due  and  about  to  arrive 
at  that  part  of  the  said  main  line  of  railway  where  the  same 


(175)  OFFENCES    AGAINST    THE    PERSON. 

was  joined  by  the  side  line  of  railway  aforesaid,  but  disregard- 
ing their  duty  in  that  behalf,  did,  on  the  day  and  year  aforesaid, 
at  the  parish  aforesaid,  in  the  county  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  wilfully  and  feloniously,  and 
with  great  force  and  violence,  wilfully  and  in  a  wanton,  negli- 
gent, and  improper  manner,  contrary  to  their  said  duty  in  that 
behalf,  and  while  the  said  train  was  so  then  and  there  due  and 
about  to  arrive  as  aforesaid,  conduct  and  drive,  and  suifer  and 
permitted  to  be  conducted  and  driven,  the  said  first  mentioned 
locomotive  steam-engine  and  tender  from  and  oft'  the  said  line 
of  railway,  into,  upon,  and  across  the  said  main  line  of  railway, 
and  thereby  and  bj"^  reason  of  the  said  premises,  and  of  the  sev- 
eral negligent  and  improper  conduct  of  the  said  S.  H.  and  of 
the  said  W.  W.,  the  said  train  so  then  travelling  and  being 
propelled  on  and  along  the  said  main  line  of  railway,  did  then 
and  there  unavoidably,  with  great  force  and  violence,  strike, 
run,  and  impinge  against  the  said  first  mentioned  locomotive 
steam-engine;  and  by  means  of  the  said  several  premises,  and 
of  the  shock  and  concussion  thereby  given  and  communicated 
to  the  said  first  mentioned  locomotive  steam-engine,  the  said  R. 
P.,  who  was  then  and  there  standing  and  being  in  and  upon 
the  said  first  mentioned  locomotive  steam-engine,  was  then  and 
there,  with  great  force  and  violence,  pushed,  forced,  dashed, 
driven,  and  jammed  in,  upon,  over,  and  between  a  certain  part 
of  the  said  first  mentioned  locomotive  steam-engine,  to  wit, 
the  hinder  part  thereof,  and  by  means  of  the  said  pushing, 
forcing,  dashing,  driving,  and  jamming,  then  and  there  were 
made  and  inflicted  in  and  upon  the  head,  to  wit,  in  and  upon 
the  right  side  of  the  head  of  the  said  R.  P.,  divers  mortal 
wounds  and  fractures,  and  in  and  upon  the  body,  to  wit,  in  and 
upon  the  back,  sides,  belly,  thighs,  legs,  and  feet  of  the  said  R. 
P.,  divers  mortal  wounds,  bruises,  contusions,  burns,  and  scalds, 
of  which  said  several  mortal  wounds,  fractures,  bruises,  con- 
tusions, burns,  and  scalds,  the  said  R.  P.,  on  the  day  and  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  instantly  died.  And 
so  the  jurors,  etc. 
182 


HOMICIDE.  (1T5) 


Third  count. 


And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  the  parish  of  Richmond 
aforesaid,  in  the  county  of  Surrey  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  in  and  upon  the  said  R,.  P.  felo- 
niously and  wilfully  did  make  an  assault,  and  that  the  said  S. 
H.  was  then  and  there  conducting  and  driving,  and  then  and 
there  had  the  management  and  control  of  a  certain  locomotive 
steam-engine,  to  and  behind  which  a  certain  carriage,  called  a 
tender,  was  then  and  there  attached,  and  which  said  locomotive 
steam-engine  and  tender  were  then  and  there  in  and  upon  a 
certain  way,  to  wit,  a  certain  side  line  of  railway  leading  into 
and  upon  a  certain  main  line  of  railway,  to  wit,  the  Richmond 
Railway,  and  that  the  said  W.  W.  was  then  and  there,  the  said 
S.  H.,  in  and  about  the  said  conducting,  driving,  management, 
and  control  of  the  said  locomotive  steam-engine  and  tender, 
aiding  and  assisting;  and  that  it  then  and  there  became  and 
was  the  duty  of  the  said  S.  H.,  and  of  the  said  W.  W.,  to  use 
all  due  and  proper  caution  in  and  about  the  conducting  and 
driving  the  said  locomotive  steam-engine  and  tender,  from  and 
oft'  the  said  side  line  of  railway,  in,  upon,  or  across  the  said 
main  line  of  railway,  yet  the  said  S.  H.  and  the  said  W.  W., 
well  knowing  the  premises,  and  not  regarding  their  duty  in 
that  behalf,  did  not,  nor  would  use  all  due  and  proper  caution 
in  and  about  the  conducting  and  driving  of  the  said  locomotive 
steam-engine  and  tender,  from  and  off  the  said  side  line  of  rail- 
way, in,  upon,  or  across  the  said  main  line  of  railway ;  but  on 
the  contrary  thereof,  did  then  and  there,  wilfully  and  feloniously, 
and  with  great  force  and  violence,  and  without  due  and  proper 
caution,  and  in  a  negligent  and  improper  manner,  and  contrary 
to  their  said  duty  in  that  behalf,  conduct  and  drive  the  said 
locomotive  steam-engine  and  tender  from  and  oft*  the  said  side 
line  of  railway,  into,  upon,  and  across  the  said  main  line  of 
railway,  and  into,  upon,  and  against  a  certain  train,  to  wit,  a 
train  consisting  of  another  locomotive  steam-engine,  with  a 
certain  other  tender,  and  divers,  to  wit,  twenty,  carriages  attached 
thereto,  and  drawn  thereby,  which  said  train  was  then  and  there 

183 


(17o)      .  OFFENCES    AGAINST    THE    PERSON. 

lawfully  travelling  and  being  propelled  on  and  along  the  said 
main  line  of  railway;  and  that  the  said  S.  H.  and  W.  W.  did 
thereby  and  by  means  of  the  said  several  premises,  and  by  reason 
of  the  shock  and  concussion  thereby  given  and  communicated 
to  the  said  first  mentioned  locomotive  steam-engine,  then  and 
there  wilfully  and  feloniously,  and  with  great  force  and  vio- 
lence, push,  force,  dash,  drive,  and  jam,  and  cause  to  be  pushed, 
forced,  dashed,  driven,  and  jammed  in,  upon,  over,  and  between 
a  certain  part  of  the  said  first  mentioned  locomotive  steam-en- 
gine, to  wit,  the  hinder  part  thereof,  the  said  R.  P.,  who  was 
then  and  there  standing,  and  being  in  and  upon  the  said  first 
mentioned  locomotive  steam-engine,  and  did  then  and  there,  by 
means  of  the  said  pushing,  forcing,  dashing,  driving,  and  jam- 
ming, wilfully  and  feloniously  inflict,  and  cause  to  be  inflicted, 
in  and  upon  the  head,  to  wit,  in  and  upon  the  right  side  of  the 
head  of  the  said  R.  P.,  divers  mortal  wounds  and  fractures,  and 
in  and  upon  the  body,  to  wit,  in  and  upon  the  back,  sides,  belly, 
thighs,  legs,  and  feet  of  the  said  R.  P.,  divers  mortal  wounds, 
bruises,  contusions,  burns,  and  scalds,  of  which  said  several 
mortal  wounds,  fractures,  bruises,  contusions,  burns,  and  scalds, 
the  said  R.  P.,  on  the  day  and  year  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction 
of  the  said  court,  instantly  died.  And  so  the  jurors  aforesaid, 
etc. 

Fourth  count 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  the  parish  of  Richmond 
aforesaid,  in  the  county  of  Surrey  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  in  and  upon  the  said  R.  P.  feloni- 
ously did  make  an  assault,  and  that  the  said  S.  H.  was  then 
and  there  conducting  and  driving,  and  then  and  there  had  the 
management  and  control  of  a  certain  locomotive  steam-engine, 
to  and  behind  which  a  certain  carriage,  called  a  tender,  was 
then  and  there  attached,  and  which  said  locomotive  steam-engine 
and  tender  were  then  and  there  in  and  upon  a  certain  way,  to 
wit,  a  certain  side  line  of  railway,  leading  into  and  upon  a  cer- 
tain main  line  of  railway,  to  wit,  the  Richmond  Railway,  and 
184 


HOMICIDE.  (175) 

that  the  said  W.  W.  was  then  and  there,  the  said  S.  H.,  in  and 
about  the  said  conducting,  driving,  management,  and  control  of 
the  said  locomotive  steam-engine  and  tender,  aiding  and  assist- 
ing, and  that  it  then  and  there  became  and  was  the  duty  of  the 
said  S.  H.,  and  of  the  said  W.  W.,  to  use  all  due  and  proper 
caution  in  and  about  the  conducting  and  driving  the  said  loco- 
motive steam-engine  and  tender  from  and  off  the  said  side  line 
of  railway,  in,  upon,  or  across,  the  said  main  line  of  railway; 
yet  the  said  S.  li.,  and  the  said  W".  W.,  well  knowing  the  prem- 
ises, and  not  regarding  their  duty  in  that  behalf,  did  not,  nor 
would  use  all  due  and  proper  caution  in  and  about  the  conduct- 
ing and  driving  of  the  said  locomotive  steam-engine  and  tender, 
from  and  off  the  said  side  line  of  railway,  in,  upon,  or  across 
the  said  main  line  of  railway,  but  on  the  contrary  thereof,  did 
then  and  there  wilfully  and  feloniously,  and  with  great  force 
and  violence,  and  without  due  and  proper  caution,  and  in  a 
negligent  and  improper  manner,  and  contrary  to  their  said  duty 
in  that  behalf,  conduct  and  drive  the  said  locomotive  steam- 
engine  and  tender  from  and  off  the  said  side  line  of  railway, 
into,  upon,  and  across  the  said  main  line  of  railway,  and  there- 
by and  by  reason  of  the  said  several  premises,  and  of  the  said 
negligent  and  improper  conduct  of  the  said  S.  H.,  and  of  the 
said  W.  W.,  a  certain  train,  to  wit,  a  train  consisting  of  a  cer- 
tain other  locomotive  steam-engine,  with  a  certain  other  tender, 
and  divers,  to  wit,  twenty,  carriages  attached  thereto,  and  drawn 
thereby,  which  said  train  was  then  and  there  lawfully  travelling 
and  being  propelled  on  and  along  the  said  main  line  of  railway, 
did  then  and  there  inadvertently,  with  great  force  and  violence, 
strike,  run,  and  impinge  upon  and  against  the  said  first  men- 
tioned locomotive  steam-engine,  and  by  means  of  the  said  sev- 
eral premises,  and  of  the  shock  and  concussion  thereby  given 
and  communicated  to  the  said  first  mentioned  locomotive  steam- 
engine,  the  said  R.  P.,  who  was  then  and  there  standing  and 
being  in  and  upon  the  said  first  mentioned  locomotive  steam- 
engine,  was  then  and  there,  with  great  force  and  violence, 
pushed,  forced,  dashed,  driven,  and  jammed  in,  upon,  against, 
over,  and  between  a  certain  part  of  the  said  first  mentioned 
locomotive  steam-engine,  to  wit,  the  hinder  part  thereof,  and  by 
means  of  the  said  pushing,  forcing,  dashing,  driving,  and  jara- 

185 


(175)  OFFENCES    AGAINST    THE    PERSON. 

ming,  then  and  there  were  made  and  inflicted  in  and  upon  the 
head,  to  wit,  in  and  upon  the  right  side  of  the  head  of  the  said 
R.  P.,  divers  mortal  wounds  and  fractures,  and  in  and  upon  the 
body,  to  wit,  in  and  upon  the  back,  sides,  belly,  thighs,  legs,  and 
feet  of  the  said  E..  P.,  divers  mortal  wounds,  bruises,  contusions, 
burns,  and  scalds,  of  which  said  several  mortal  wounds,  frac- 
tures, bruises,  contusions,  burns,  and  scalds,  the  said  R.  P.,  on 
the  day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
instantly  died.     And  so  the  jurors  aforesaid,  etc. 

Fifth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arras,  at  the  parish  of  Richmond 
aforesaid,  in  the  county  of  Surrey  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  in  and  upon  the  said  R.  P.  felo- 
niously and  wilfully  did  make  an  assault;  and  that  the  said  S. 
H.,  and  the  said  W.  W.,  a  certain  locomotive  steam-engine,  to 
and  behind  which  a  certain  carriage,  called  a  tender,  was  then 
and  there  attached,  and  which  said  locomotive  steam-engine  and 
tender  were  then  and  there  being  forced  and  propelled  by  the 
power  of  steam  on  and  along  a  certain  way,  to  wit,  a  railway, 
and  which  said  locomotive  steam-engine  and  tender,  the  said 
S.  H,  was  then  and  there  managing,  controlling,  conducting, 
and  driving,  in  and  along  the  said  railway,  and  in  the  managing, 
controlling,  conducting,  and  driving  whereof  the  said  W.  W. 
was  then  and  there  the  said  S.  H.  aiding  and  assisting,  did  then 
and  there  wilful!y  and  feloniously,  by  the  wanton  and  felonious 
negligence  of  them  and  each  of  them  respectively,  and  by  the 
wilful  and  felonious  disregard  of  the  duties  incumbent  upon 
them,  and  each  of  them  respectively,  in  that  behalf,  cause,  occa- 
sion, permit,  and  suffer  to  strike  and  run  into,  upon,  and  against, 
and  to  be  with  great  force  and  violence  forced,  driven,  and 
dashed  into,  upon,  and  against  a  certain  other  locomotive  steam- 
engine,  to  which  said  last  mentioned  locomotive  steam-engine 
a  certain  other  tender  and  divers,  to  wit,  twenty,  carriages,  were 
then  and  there  attached,  and  which  said  last  mentioned  locomo- 
tive steam-engine  and  tender  and  carriages  were  then  and  there 
186 


HOMICIDE.  (I'^S) 

lawfully  travelling  and  being  propelled  on  and  along  the  said  rail- 
way, and  that  the  said  S.  II.,  and  the  said  W.  W.,  did  thereby, 
and  by  means  of  the  said  several  premises,  and  b^-^  reason  of  the 
shock  and  concussion  thereby  caused  and  communicated  to  the 
said  first  mentioned  locomotive  steam-engine  and  tender,  then  and 
there  wilfully  and  feloniously,  and  with  great  force  and  violence, 
push,  force,  dash,  drive,  and  jam,  and  cause  to  be  pushed,  forced, 
dashed,  driven,  and  jammed  in,  upon,  over,  and  between  a  certain 
part  of  the  said  first  mentioned  locomotive  steam-engine,  to  wit, 
the  hinder  part  thereof,  the  said  R.  P.,  who  was  then  and  there 
standing  and  being  in  and  upon  the  said  first  mentioned  locomo- 
tive steam-engine,  and  did  then  and  there,  and  by  means  of  the 
said  pushing,  forcing,  dashing,  driving,  and  jamming,  wilfully 
and  feloniously  inflict,  and  cause  to  be  inflicted,  in  and  upon  the 
head,  to  wit,  the  right  side  of  the  head  of  the  said  R.  P.,  divers 
mortal  wounds  and  fractures,  and  in  and  upon  the  body,  to  wit, 
in  and  upon  the  back,  sides,  belly,  thighs,  legs,  and  feet  of  the 
said  R.  P.,  divers  mortal  wounds,  contusions,  bruises,  burns,  and 
scalds,  of  which  said  several  wounds,  fractures,  contusions, 
bruises,  burns,  and  scalds,  the  said  R.  P.,  on  the  day  and  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  instantly  died.  And 
so  the  jurors  aforesaid,  etc. 

Sixth  count 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the 
day  and  year  aforesaid,  with  force  and  arms,  at  the  parish  of 
Richmond  aforesaid,  in  the  county  of  Surrey  aforesaid,  and 
within  the  jurisdiction  of  the  said  court,  in  and  upon  the  said 
R.  P.  feloniously  and  wilfully  did  make  an  assault,  and  that  the 
said  S.  H.  and  the  said  W.  W.,  a  certain  locomotive  steam-en- 
gine, to  and  behind  wliich  a  certain  carriage,  called  a  tender, 
was  then  and  there  attached,  and  which  said  locomotive  steam- 
engine  and  tender  were  then  and  there  being  forced  and  pro- 
pelled by  the  power  of  steam  on  and  along  a  certain  way,  to 
wit,  a  railway,  and  which  said  locomotive  steam-engine  and 
tender  the  said  S.  H.  was  then  managing,  controlling,  conduct- 
ing, and  driving  in  and  along  the  said  railway,  and  in  the 

187 


(175)  OFFENCES    AGAINST    THE    PERSON. 

managing,  controlling,  conducting,  and  driving  whereof  the 
said  W.  W.  was  then  and  there  the  said  S.  H.  aiding  and  assist- 
ing, did  then  and  there  wilfully  and  feloniously,  and  by  the 
wanton  and  felonious  negligence  of  them  and  each  of  them 
respectively,  and  by  the  wilful  and  felonious  disregard  of  the 
duties  incumbent  upon  them  and  each  of  them  respectively  in 
that  behalf,  and  with  great  force  and  violence,  conduct,  drive, 
and  propel,  and  cause  and  permit  to  be  conducted,  driven,  and 
propelled  to,  upon,  along,  and  across  a  certain  other  part  of  the 
railway  aforesaid,  and  thereby  and  by  reason  of  the  said  several 
premises,  and  of  the  said  wilful  and  felonious  negligence  of  the 
said  S.  H.,  and  of  the  said  W.  W".,  a  certain  train,  to  wit,  a 
train  consisting  of  a  certain  other  locomotive  steam-engine,  with 
a  certain  other  tender,  and  divers,  to  wit,  twenty,  carriages 
attached  thereto  and  drawn  thereby,  and  which  said  train  was 
then  and  there  lawfully  travelling  and  being  propelled  on  and 
along  the  said  last  mentioned  part  of  the  said  line  of  railway, 
did  then  and  there  unavoidably  and  with  great  force  and  violence 
strike,  drive,  dash,  and  impinge  upon  and  against  the  said  first  men- 
tioned locomotive  steam-engine  ;  and  by  means  of  the  said  several 
premises,  and  of  the  shock  and  concussion  thereby  given  and 
communicated  to  the  said  first  mentioned  locomotive  steam- 
engine,  the  said  R.  P.,  who  then  and  there  was  standing  and 
being  in  and  upon  the  said  first  mentioned  locomotive  steam- 
engine,  was  then  and  there,  with  great  force  and  violence,  pushed, 
forced,  dashed,  driven,  and  jammed  in,  upon,  over,  and  between 
a  certain  part  of  the  said  first  mentioned  locomotive  steam-en- 
gine, to  wit,  the  hinder  part  thereof,  and  by  means  of  the  said 
pushing,  forcing,  dashing,  driving,  and  jamming,  then  and  there 
were  inflicted  in  and  upon  the  head,  to  wit,  in  and  upon  the 
right  side  of  the  head  of  the  said  R.  P.,  divers  mortal  wounds 
and  fractures,  and  in  and  upon  the  body,  to  wit,  in  and  upon 
the  back,  sides,  belly,  thighs,  legs,  and  feet  of  the  said  R.  P., 
divers  mortal  wounds,  bruises,  contusions,  burns,  and  scalds,  of 
which  said  mortal  wounds,  fractures,  bruises,  contusions,  burns, 
and  scalds,  the  said  R.  P.,  on  the  day  and  year  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  instantly  died.  And  so  the  jurors,  etc. 
188 


HOMICIDE.  (I'^S) 

Seventh  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  H.  and  the  said  W.  W.,  on  the  day  and 
year  aforesaid,  with  force  and  arms,  at  the  parish  of  Richmond 
aforesaid,  in  the  county  of  Surrey  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  in  and  upon  the  said  R.  P.  feloni- 
ously and  wilfully  did  make  an  assault,  and  that  the  said  S.  H. 
and  W.  W.,  a  certain  locomotive  steam-engine,  to  and  behind 
which  a  certain  carriage,  called  a  tender,  was  then  and  there 
attached,  and  which  said  locomotive  steam-engine  and  tender 
were  then  and  there  the  property  of  a  certain  corporate  body, 
to  wit,  the  London  and  South-Western  Railway  Company,  and 
were  then  and  there  lawfully  standing  and  being  in  and  upon 
a  certain  railway,  to  wit,  at  and  near  a  certain  station  belonging 
to  the  said  railway,  did  then  and  there  wilfully  and  feloniously, 
and  without  any  lawful  authority  in  that  behalf,  and  with  great 
force  and  violence,  conduct,  drive,  and  propel,  and  cause,  per- 
mit, and  suffer  to  be  conducted,  driven,  and  propelled  away  from 
the  said  station  along,  to,  upon,  and  across  a  certain  other  part 
of  the  railway  aforesaid,  and  thereby  and  by  reason  of  the  said 
several  premises  a  certain  train,  to  wit,  a  train  consisting  of  a 
certain  other  locomotive  steam-engine,  with  a  certain  other  ten- 
der, and  divers,  to  wit,  twenty,  carriages  attached  thereto  and 
drawn  thereby,  and  which  said  train  was  then  and  there  law- 
fully travelling  and  being  propelled  on  and  along  the  line  of  the 
said  railway,  did  then  and  there  unavoidably  and  with  great 
force  and  violence  strike,  dash,  drive  and  impinge  upon  and 
against  the  said  first  mentioned  locomotive  steam-engine ;  and 
by  means  of  the  said  several  premises,  and  of  the  shock  and 
concussion  thereby  given  and  communicated  to  the  said  first 
mentioned  locomotive  steam-engine,  the  said  R.  P.,  who  then 
and  there  was  standing  and  being  in  and  upon  the  said  first 
mentioned  locomotive  steam-engine,  was  then  and  there,  with 
great  force  and  violence,  pushed,  forced,  dashed,  driven,  and 
jammed  in,  upon,  over,  and  between  a  certain  part  of  the  said 
first  mentioned  locomotive  steam-engine,  to  wit,  the  hinder  part 
thereof,  and  by  means  of  the  said  pushing,  forcing,  dashing, 
driving,  and  jamming,  then  and  there  were  made  and  inflicted, 

189 


(176)  OFFENCES    AGAINST    THE    PERSON. 

in  and  upon  the  head,  to  wit,  in  and  upon  the  right  side  of 
the  head  of  the  said  E,.  P.,  divers  mortal  wounds  and  fractures, 
and  in  and  upon  the  body,  to  wit,  in  and  upon  the  back,  sides, 
belly,  thighs,  legs,  and  feet  of  the  said  R.  P.,  divers  mortal 
wounds,  bruises,  contusions,  burns,  and  scalds,  of  which  said 
several  mortal  wounds,  fractures,  bruises,  contusions,  burns,  and 
scalds,  the  said  R.  P.,  on  the  day  and  year  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  the  said  court,  instantly  died,  and  so  the  jurors,  etc. 

(176)   Involuntary  manslaughter  in  Pennsylvania^  by  striking  an 
infant  zvith  a  dray. 

That  C.  M'G.,  late  of  the  county  aforesaid,  porter,  on  the 
day  of  in  the  year,  etc.,  with  force  and  arms,  at  the 

city  of  Philadelphia,  in  the  county  aforesaid,  in  and  upon  one 
S.  G.,  an  infant  of  tender  years,  to  wit,  of  the  age  of  two  years, 
and  in  the  peace  of  God  and  the  commonwealth,  then  and  there 
being,  did  make  an  assault;  and  that  the  said  C.  M'G.,  then  and 
there  driving  one  horse  drawing  a  dray,  did  then  and  there,  in 
the  city  aforesaid,  unlawfully  and  violently  drive  the  said  horse, 
so  as  aforesaid  drawing  the  said  dray,  to  and  against  the  said 
S.  G.,  and  that  he  the  said  C.  M'G.,  with  one  of  the  wheels  of 
the  said  dray,  did  then  and  there,  in  the  city  aforesaid,  by  such 
driving,  unlawfully  and  violently,  the  said  S.  G.,  drive,  force, 
and  throw  to  the  ground,  by  means  whereof,  one  of  the  wheels 
of  the  said  dray,  against,  upon,  and  over  the  head  of  the  said 
S.,  did  strike  and  go,  thereby  and  then  and  there  given  unto  the 
said  S.  one  mortal  fracture  and  contusion,  of  which  said  mortal 
fracture  and  contusion,  she  the  said  S.,  on  the  same  day  and 
year  aforesaid,  at  the  county  aforesaid,  died,  and  so  the  inquest 
aforesaid,  upon  their  oaths  and  affirmations  aforesaid,  do  say, 
that  the  said  C.  M'G.,  her  the  said  S.  G.,  in  manner  and  by  the 
means  aforesaid,  unlawfullj-  did  kill,  contrary,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 
190 


HOMICIDE.  (1'7'7) 

(177)  31urder  on  the  high  seas.  General  form  as  used  in  the 
United,  States  courts.  {With  commencement  and  conclusion 
as  adopted  in  the  federal  courts  of  New  York.){w) 

First  count.     By  striking  with  a  sharp  instrument. 

Southern  District  of  ISTew  York,  ss.  The  jurors  of  the  United 
States  of  America,  within  and  for  the  circuit  and  district  afore- 
said, on  tlieir  oath  present,  that  late  of  the  city  and 
county  of  New  York,  in  the  circuit  and  district  aforesaid,  mari- 
ner, late  of  the  city  and  county  of  "New  York,  in  the 
circuit  and  district  aforesaid,  mariner,  and  {if  as  many  as  three 
were  engaged)  late  of  the  city  and  county  of  I^ew  York, 
in  the  circuit  and  district  aforesaid,  mariner,  not  having  the 
fear  of  God  before  their  eyes,  but  being  moved  and  seduced  by 
the  instigation  of  the  devil,  on  the  day  of  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  with 
force  and  arms,  upon  the  high  seas,  out  of  the  jurisdiction  of 
any  particular  state  of  the  said  United  States,  within  the 
admiralty  and  maritime  jurisdiction  of  the  said  United  States, 
and  within  the  jurisdiction  of  this  court,  in  and  on  board  of  a 
certain  vessel  being  a  called  the  owned  by  a  certain 
person  or  persons  whose  names  are  to  the  said  jurors  unknown, 
being  a  citizen  or  citizens  of  the  United  States  of  America,  in 
and  upon  one  in  the  peace  of  God  and  the  said  United 
States,  then  and  there  being  on  board  said  called  the 
on  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state 
of  the  said  United  States  of  America,  within  the  admiralty  and 
maritime  jurisdiction  of  the  said  United  States,  and  within  the 
jurisdiction  of  this  court,  piratically,  feloniously,  wilfully,  and 
of  their  malice  aforethought,  did  make  an  assault,  and  that  the 
said  with  a  certain  instrument  of  called  a  of 
the  value  of  which  he  the  said  in  his  hand 
then  and  there  had  and  held,  upon  the  of  him  the  said 
then  and  there  being  on  the  high  seas,  in  the  afore- 
said, and  out  of  the  jurisdiction  of  any  particular  state  of  the 

(w)  This  indictment,  -which  is  framed  with  great  accuracy,  is  that  on  which 
Babe,  the  pirate,  was  convicted  in  the  Southern  District  of  New  York.  This 
and  the  remaining  federal  forms  from  New  York  were  obtained  from  Mr.  May- 
berry,  assistant  to  the  U.  S.  district  attorney. 

191 


(176)  OFFENCES    AGAINST    THE    PERSON. 

said  United  States,  and  within  the  jurisdiction  of  this  court, 
then  and  there  feloniously,  wilfully,  and  of  his  malice  afore- 
thought, did  strike,  giving  the  said  with  the  afore- 
said, in  manner  aforesaid,  in  and  upon  the             of  him  the  said 

several  mortal  strokes,  wounds,  and  bruises,  to  wit,  one 
mortal  wound  on  the  of  him  the  said  of  the  length 

of  inches,  and  of  the   depth  of  inches,  of  which 

said  mortal  wound  the  said  on  the  high  seas  aforesaid, 

out  of  the  jurisdiction  of  any  particular  state  of  the  said  United 
States,  and  within  the  jurisdiction  of  this  court,  instantly  died 
{or  otherwise),  and  that  the  said  then  and  there  feloniously, 

wilfully,  and  of  their  malice  aforethought,  were  present  aiding 
and  assisting  the  said  in  the  felony  and  murder  aforesaid, 

in  manner  and  form  aforesaid  to  do  and  commit ;  and  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 

in  manner  and  form  aforesaid,  piratically,  feloniously, 
and  of  their  malice  aforethought,  did  kill  and  murder,  against 
the  peace  of  the  said  United  States  of  America  and  their  dig- 
nity, and  against  the  form  of  the  statute  of  the  said  United 
States  in  such  case  made  and  provided. 

Second  count. 

(^Same  as  first  count,  substituting^  :  "  owned  by  citizens  {or  a 
citizen)  of  the  United  States  of  America," /or  "owned  by  a  cer- 
tain person  or  persons,  whose  names  are  to  the  said  jurors  un- 
known, being  a  citizen  of  the  United  States  of  America." 

Third  count. 

{Same  as  second  count,  S'pecifyiyig  one  other  of  the  persons  engaged, 
as  principal,  and  the  others  as  aiders  and  abettors.) 

Fourth  count. 

{Same  as  third  count,  specifying  one  other  of  the  persons  engaged, 
as  principal,  and  the  others  as  aiders  and  abettors,  and  so  on  until 
the  number  is  exhausted.) 

Fifth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  late  of  the  city  and  county  of  New  York, 

192 


HOMICIDE.  (177) 

in  the  circuit  and  district  aforesaid,  mariner,  late  of  the 

same  place,  in  the  circuit  and  district  aforesaid,  mariner,  and 

late  of  the  same  place  {or  otherwise)^  not  having  the  fear 
of  God  before  their  eyes,  but  being  moved  and  seduced  by  the 
instigation  of  the  devil,  on  the  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  with  force  and 

arms,  on  the  high  seas,  out  of  the  jurisdiction  of  any  particular 
state  of  the  said  United  States  of  America,  within  the  admi- 
ralty and  maritime  jurisdiction  of  the  said  United  States,  and 
within  the  jurisdiction  of  this  court,  on  board  of  a  certain  ves- 
sel being  a  called  the  owned  by  citizens  of  the 
United  States  of  America,  in  and  upon  one  in  the  peace 
of  God  and  the  said  United  States,  then  and  there  being  on 
board  the  said  called  the  on  the  high  seas,  out  of  the 
jurisdiction  of  any  particular  state  of  the  said  United  States, 
and  within  the  jurisdiction  of  this  court,  piratically,  feloniously, 
wilfully,  and  of  their  malice  aforethought,  did  make  an  assault; 
and  the  said              with  a  certain  instrument  of  called  a 

of  the  value  of  which  he  the  said  then  and 

there  in  his  hand  had  and  held,  and  the  said  {here 

specif i/  one  other)  with  a  certain  other  instrument  of  called 

a  of  the  value  of  which  he  the  said  in  his 

hand  then  and  there  had  and  held,  and  the  said  {here 

specific  one  olher^  if  as  many  are  contained  in  the  complaint)  with 
a  certain  other  instrument  of  called  a  of  the  value  of 

which  he  the  said  in  his  hand  then  and  there 

had  and  held,  the  said  in  and  upon  the  head,  face,  breast, 

and  other  parts  of  the  body  of  him  the  said  then  and  there 
being  on  the  high  seas,  in  the  said  called  the  out  of  the 
jurisdiction  of  any  particular  state,  and  within  the  jurisdiction 
of  this  court,  then  and  there  feloniously,  wilfully,  and  of  their 
malice  aforethought,  did  strike  and  beat,  giving  him,  the  said 

then  and  tliere  with  the  aforesaid,  by  such  striking 

and  beating,  divers  mortal  wounds,  bruises,  and  contusions,  in 
and  upon  the  head,  face,  breast,  and  other  parts  of  the  body  of 
him  the  said  of  which  said  mortal  wounds,  bruises,  and 

contusions,  he  the  said  on  the  high  seas  aforesaid,  out  of 

the  jurisdiction  of  any  particular  state  of  the  said  United  States 
of  America,  and  within  the  jurisdiction  of  this  court,  did  in- 
voL.  I.— 13  198 


(177)  OFFENCES    AGAINST   THE    PERSON, 

stantly  die  {or  as  in  preceding  indictment).  And  so  the  jurors 
aforesaid,  on  their  oath  aforesaid,  do  say,  that  they  the  said 
in  the  manner  and  by  the  means  last  aforesaid,  on  the 
high  seas,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States  of  America,  within  the  admiralty  and  mari- 
time jurisdiction  of  the  said  United  States,  and  within  the 
jurisdiction  of  this  court,  piratically,  feloniously,  wilfully,  and 
of  their  malice  aforethought,  the  said  did  kill  and  mur- 

der, against  the  peace  of  the  said  United  States  of  America  and 
their  dignity,  and  against  the  form  of  the  statute  of  the  said 
United  States  in  such  case  made  and  provided. 

Sixth  count.     By  drowning. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  {as  in  fifth  count),  not  having  the  fear  of  God  be- 
fore their  eyes,  but  being  moved  and  seduced  by  the  instigation 
of  the  devil,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  with  force  and  arms,  upon 
the  high  seas,  out  of  the  jurisdiction  of  any  particular  state  of 
the  said  United  States,  and  within  the  admiralty  and  maritime 
jurisdiction  of  the  said  United  States,  and  within  the  jurisdic- 
tion of  this  court,  on  board  of  a  certain  vessel  being  a 
called  the  owned  in  whole  or  in  part  by  one  of  the 

a  citizen  of  the  United  States  of  America,  in  and  upon 
one  in  the  peace  of  God  and  of  the  said  United  States, 

then  and  there  being,  on  board  of  the  said  called  the 

on  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state 
of  the  said  United  States,  within  the  admiralty  and  maritime 
jurisdiction  of  the  said  United  States,  and  within  the  jurisdic- 
tion of  this  court,  piratically,  feloniously,  wilfully,  and  of  their 
malice  aforethought,  did  take  the  said  into  their  hands, 

he  the  said  then  and  there  being  on  the  high  seas,  in  the 

aforesaid,  out  of  the  jurisdiction  of  any  particular  state 
of  the  said  United  States,  within,  etc.,  and  within  the  jurisdic- 
tion of  this  court,  and  did  then  and  there  feloniously,  wilfully, 
and  of  their  malice  aforethought,  cast,  throw,  and  push  the  said 

from  and  out  of  the  said  called  the  so  being 

on  the  high  seas  aforesaid,  out  of  the  jurisdiction  of  any  par- 
ticular state  of  the  said  United  States,  and  within  the  jurisdic- 
194 


HOMICIDE.  (177) 

tion  of  this  court,  into  the  sea,  by  means  of  which  said  casting, 
throwino;,  and  pushing  of  the  said  into  the  sea  aforesaid, 

by  them  the  said  in  manner  and  form  aforesaid,  he  the 

said  in  the  sea  aforesaid,  with  the  waters  thereof,  was 

then  and  there  choked,  suftbcated,  and  drowned,  of  which  said 
choking,  suffocation,  and  drowning,  he  the  said  then  and 

there  in  the  sea  aforesaid,  out  of  the  jurisdiction  of  any  par- 
ticular state  of  the  said  United  States  of  America,  within,  etc., 
and  within  the  jurisdiction  of  this  court,  instantly  died ;  and  so 
the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say,  that  the 
said  in  the  manner  and  by  the  means  aforesaid,  on  the 

high  seas,  out  of  the  jurisdiction  of  any  particular  state  of 
the  said  United  States  of  America,  within,  etc.,  and  within  the 
jurisdiction  of  this  court,  piratically,  feloniously,  wilfully,  and 
of  their  malice  aforethought,  the  said  did  kill  and  murder, 

against  the  peace  and  dignity  of  the  United  States  of  America, 
and  against  the  form  of  the  statute  of  the  said  United  States 
in  such  case  made  and  provided. 

Seventh  count. 

{Same  as  last^  stated  differently^  s-pecifying  one  as  principal  and 
the  others  as  aiding^  etc.) 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  {as  in  preceding  counts  specijied),  not  having  the 
fear  of  God  before  their  eyes,  but  being  moved  and  seduced  by 
the  instigation  of  the  devil,  on  the  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  with 

force  and  arms,  on  the  high  seas,  out  of  the  jurisdiction  of  any 
particular  state  of  the  said  United  States  of  America,  within 
the  admiralty  and  maritime  jurisdiction  of  the  said  United 
States,  and  within  the  jurisdiction  of  this  court,  on  board  of  a 
certain  vessel,  being  a  called  the  owned  in  whole  or 

in  part  by  one  {specify  one  of  the  owners)  of  the  in   the 

a  citizen  of  the  United  States  of  America,  in  and  upon 
one  in  the  peace  of  God  and  of  the  said  United  States, 

then  and  there  being  on  board  the  said  called  the 

on  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state 
of  the  said  United  States,  within  the  admiralty  and  maritime 
jurisdiction  of  the  said  United  States,  and  within  the  jurisdic- 

195 


(177)  OFFENCES    AGAINST    THE    PERSON. 

tion  of  this  court,  piratically,  feloniously,  wilfully,  and  of  their 
malice  aforethought,  did  make  an  assault;  and  that  he  the  said 
{he?'e  name  one  as  principal),  then  and  there  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  take  the  said  in  his 

hands,  he  the  said  then  and  there  being  on  the  high  seas, 

in  the  aforesaid,  out  of  the  jurisdiction  of  any  particular 

state  of  the  said  United  States,  within  the  admiralty  and  mari- 
time jurisdiction  of  the  said  United  States,  and  within  the 
jurisdiction  of  this  court,  and  did  then  and  there  feloniously, 
wilfully,  and  of  his  malice  aforethought,  cast,  throw,  and  push 
the  said  from  and  out  of  the  said  called  the  so 

being  on  the  high  seas  as  aforesaid,  out  of  the  jurisdiction  of 
any  particular  state  of  the  said  United  States  of  America, 
within  the  admiralty  and  maritime  jurisdiction  of  the  said 
United  States,  and  within  the  jurisdiction  of  this  court,  into 
the  sea,  by  means  of  which  said  casting,  throwing,  and  pushing 
of  the  said  into  the  sea  aforesaid,  by  him  the  said 

in  manner  and  form  aforesaid,  he  the  said  in  the  sea  afore- 

said, with  the  waters  thereof,  was  then  and  there  choked,  suffo- 
cated, and  drowned,  of  which  said  choking,  suffocation,  and 
drowning,  he  the  said  then  and  there,  in  the  sea  afore- 

said, out  of  the  jurisdiction  of  any  particular  state  of  the  said 
United  States,  within  the  admiralty  and  maritime  jurisdiction 
of  the  said  United  States,  and  within  the  jurisdiction  of  this 
court,  instantly  died ;  and  that  the  said  {here  name  the  remaining 
ones),  then  and  there  feloniously,  wilfully,  and  of  their  malice 
aforethought,  were  present,  aiding,  helping,  abetting,  assisting, 
and  maintaining  the  said  in  the  felony  and  murder  afore- 

said, in  manner  and  form  aforesaid,  to  do  and  commit.  And 
so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that 
the  said  in  manner  and  form  last  aforesaid,  piratically, 

feloniously,  wilfully,  and  of  their  malice  aforethought,  the  said 
did  kill  and  murder,  against  the  peace  and  dignity  of 
the  United  States  of  America,  and  against  the  form  of  the 
statute  of  the  said  United  States  in  such  case  made  and  pro- 
vided. 

196 


HOMICIDE.  (177) 

Eighth  count. 
(^Same  as  seventh  county  substituting  one  other  as  principal.) 

Ninth  count. 

{Same  as  eighth  count,  substituting  one  other  as  principal,  if  as 
many  were  engaged ;  and  if  more  than  three^  go  on  as  before  as  to 
each  person.) 

Tenth  count.     By  wounding  and  drowning. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  furtlier 
present,  that  {as  in  the  preceding  counts  specified)  heretofore,  to 
wit,  on  the  day  of  in  the  year  of   our  Lord   one 

thousand  eight  hundred  and  with  force  and  arms,  upon 

the  high  seas,  out  of  the  jurisdiction  of  any  particular  state  of 
the  United    States,  within  the  admiralty  and   maritime  juris- 
diction of  the  said  United  States,  and  within  the  jurisdiction  of 
this  court,  in  and  on  board  of  a  certain  vessel,  being  a 
called  the  owned  by  citizens  of  the  United  States 

of  America,  in  and  upon  a  person  known  and  commonly  called 
by  the  name  of  a  mariner  {or  otherwise),  in  and  on  board 

said  vessel,  in  the  peace  of  God  and  of  the  said  United  States, 
then  and  there  being,  piratically,  feloniously,  wilfully,  and  of 
their  malice  aforethought,  did  make  an  assault,  and  that  they 
the  said  with  a  certain  instrument  of  called  a 

which  he  the  said  in  his  hand  then  and  there  had  and 

held,  the  said  in  and  upon  the  head,  breast,  and  other 

parts  of  the  body  of  him  the  said  upon  the  high  seas,  and 

on  board  the  vessel  aforesaid,  and  out  of  the  jurisdiction  of  any 
particular  state  of  the  said  United  States,  within  the  admiralty 
and  maritime  jurisdiction  of  the  said  United  States,  and  within 
the  jurisdiction  of  this  court,  piratically,  feloniously,  wilfully, 
and  of  their  malice  aforethought,  did  strike  and  beat,  giving  to 
the  said  in  and  upon  the  head,  breast,  and  other  parts  of 

the  body  of  him  the  said  upon  the  high  seas,  in  and  on 

board  the  vessel  aforesaid,  several  grievous  wounds,  and  did 
then  and  there,  in  and  on  board  the  vessel  aforesaid,  on  the  high 
seas  aforesaid,  out  of  the  jurisdiction  of  any  particular  state  of 
the  said    United    States,  and  within  the  jurisdiction  of  this 

197 


(177a)  OFFENCES    AGAINST    THE    PERSON. 

court,  piratically,  feloniously,  wilfully,  and  of  their  malice 
aforethought,  him  the  said  cast  and  throw  from  and  out 

of  the  said  vessel  into  the  sea,  and  plunge,  sink,  and  drown  him 
the  said  in  the  sea  aforesaid,  of   which   said   grievous 

wounds,  casting,  throwing,  plunging,  sinking,  and  drowning, 
the  said  upon  the  high  seas  aforesaid,  out  of  the  juris- 

diction of  any  particular  state  of  the  said  United  States,  and 
within  the  jurisdiction  of  this  court,  then  and  there  instantly 
died.  And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  him  the  said  then  and  there, 

upon  the  high  seas  as  aforesaid,  and  out  of  the  jurisdiction  of 
any  particular  state,  piratically,  feloniously,  wilfully  and  of  their 
malice  aforethought,  did  kill  and  murder,  against  the  peace 
and  dignity  of  the  said  United  States  of  America,  and  against 
the  form  of  the  statute  of  the  said  United  States  in  such  case 
made  and  provided. 

Eleventh  count. 

{Same  as  tenth  county  inserting  the  name  of  one  only  of  the  per- 
sons engaged^  as  principal^  with  the  others  as  accomplices,  making 
the  proper  variations.) 

Last  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  southern  district  of  New  York  {or  otherwise), 
in  the  second  circuit,  is  the  district  and  circuit  in  which  the 
said  was  first  apprehended  for  the  said  oflence.(x) 

(177a)  Murder.     By  shooting  on  the  high  seas. 

The  jurors  of,  etc.,  upon  their  oath  present,  that  C.  P.,  mari- 
ner, otherwise  called  C.  W.  P.,  late  of,  etc.,  in  said  district,  W. 
H.  C,  mariner,  otherwise  called  R.  C,  late  of,  etc.,  in  said  dis- 
trict, W.  H.,  late  of,  etc.,  in  said  district,  mariner,  and  C.  H.  S., 
mariner,  otherwise  called  J.  W.  B.,  late  of,  etc.,  in  said  district, 
on,  etc.,  with  force  and  arms,  on  the  high  seas  and  within  the 
admiralty  and  maritime  jurisdiction  of  the  said  U.  S.,  and 
within  the  jurisdiction  of  this  court,  and  out  of  the  jurisdiction 

(x)   See  supra,  17,  18;    infra,  239,  note. 

198 


HOMICIDE.  (177a) 

of  any  particular  State  of  the  U.  S.,  in  and  on  board  of  a  certain 
vessel,  the  same  then  and  there  being  a  ship  called  J.,  then  and 
there  owned  by  D.  R.  &.,  E,.   B.  G.,  D.  W.,  and  W.  N.,  all 
citizens  of  the  said  U.  S.,  in  and   upon  one  A.  M.,  then  and 
there  being  in  and  on  board  of  the  ship  aforesaid,  and  on  the 
high  seas  aforesaid,  and  within  the  admiralty  and  maritime 
jurisdiction  of  the  said  U.  S.,  and  within  the  jurisdiction  of 
this  court,  and  out  of  the  jurisdiction  of  any  particular  state  of 
the  said  U.  S.,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, did  make  an  assault ;  and  that  the  said  C.  P.,  otherwise 
etc.,  with  a  certain  gun,  called  a  whaling  gun,  then  and  there 
charged  with  gunpowder  and  three  leaden  bullets,  which  said 
gun  he  the  said  C.  P.,  otherwise,  etc.,  in  both  his  hands  then 
and  there  had  and  held,  at  and  against  the  body  of  him  the 
said  A.  M.,  then  and  there  being  in  and  on  board  of  the  ship 
aforesaid,  and  on  the  high  seas  aforesaid,  and  within  the  admi- 
ralty and  maritime  jurisdiction  of  the  said  U.  S.,and  within  the 
jurisdiction,  etc.,  and  out  of  the  jurisdiction,  etc.,  then  and 
there  feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
shoot  oft'  and  discharge,  and  that  the  said  C.  P.,  otherwise,  etc., 
then  and  there  with  the  three  leaden  bullets  aforesaid,  out  of 
the  gun  aforesaid,  then  and  there  by  force  of  the  gunpowder 
aforesaid,  by  hira  the  said  C.  P.,  otherwise,  etc.,  then  and  there 
shot  oft",  discharged,  and  sent  forth  as  aforesaid,  him  the  said 
A.  M.,  then  and  there  being  in  and  on  board  of  the  ship  afore- 
said, and  on  the  high  seas  aforesaid,  and  within  the,  etc.,  of  the 
U.  S.,  and  within  the  jurisdiction  of,  etc.,  and  out  of  the  juris- 
diction, etc.,  in  and  upon  the  left  side  of  the  body  of  him  the 
said  A.   M.,  then  and   there  feloniously,   wilfully,  and  of  his 
malice  aforethought,  did  strike,  penetrate,  and  wound,  then  and 
there  giving  to  him  the  said  A.  M.  tlien  and  there  with  the 
three  leaden  bullets  aforesaid,  so  as  aforesaid,  by  him  the  said 
C.  P.,  otherwise,  etc.,  then  and  there  shot  oft",  disciiarged,  and 
sent  forth  out  of  the  gun  aforesaid,  by  force  of  the  gunpowder 
aforesaid,  in,  upon,  and  against  the  left  side  of  the  body  of  hira 
the  said  A.  M.,  and  then  and  there  penetrating  into  and  through 
the  body  of  him  the  said  A.  M.,  one  mortal  wound,  of  which 
said  mortal  wound  the  said  A.  M.,  in  and  on  board  of  the  sliip 
aforesaid,  and  on  the  high  seas  aforesaid,  and  within  the,  etc., 

199 


(178)  OFFENCES  AGAINST  THE  PERSON. 

jurisdiction  of  the  said  U.  S.,and  within  the  jurisdiction  of,  etc., 
and  out  of,  etc.,  then  and  there  on,  etc.,  instantly  died.  And 
that  the  said  W.  H.  C,  otherwise,  etc.,  W.  H.,  C.  H.  S.,  other- 
wise, etc.,  then  and  there  on,  etc.,  in  and  on  board  of  the  ship 
aforesaid,  and  on  the  high  seas  aforesaid,  and  within,  etc.,  and 
within  etc.,  and  out  of,  etc.,  feloniously,  wilfully,  and  of  their 
malice  aforethought,  were  present,  and  then  and  there  feloniously, 
wilfull3^  and  of  their  malice  aforethought,  were  aiding,  abetting, 
comforting,  assisting,  and  maintaining  the  said  C.  P.,  otherwise, 
etc.,  the  felony  and  murder  aforesaid,  in  the  manner  and  form 
aforesaid,  then  and  there  to  do,  commit,  and  perpetrate. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  C.  P.,  otherwise,  etc.  (here  follow  the  other  names), 
feloniously,  wilfully,  and  of  their  malice  aforethought,  him  the 
said  A.  M.,  did  then  and  there,  in  the  manner  and  form  afore- 
said, kill  and  murder,  against  the  peace,  etc.(?/) 

178)  Miu'der  on  the  high  seas, by  striJciyig  loUh  a  handspike.  {With 
commencement  and  conclusion  as  adopted  in  the  federal  courts 
of  Pennsylvania.){z) 

In  the  Circuit  Court  of  the  United  States  of  America,  in  and 
for  the  Eastern  District  of  Pennsylvania,  of  Sessions,  in 

the  year,  etc. 

Eastern  District  of  Pennsylvania,  to  wit : 

The  grand  inquest  of  the  United  States  of  America,  inquir- 
ing for  the  eastern  district  of  Pennsylvania,  upon  their  oaths 
and  atiirmations  respectively  do  present,  that  A.  B.,  late  of  the 
district  aforesaid,  one  of  the  crew  of  an  American  vessel,  to 
wit,  the  bark  "Active,"  not  having  the  fear  of  God  before  his 
eyes,  but  being  moved  and  seduced  by  the  instigations  of  the 
devil,  on  the  day  of  in  the  year,  etc.,  on  the  high 

seas,  within  the  admiralty  and  maritime  jurisdiction  of  the 
United   States,  to  wit,  at  the  district  aforesaid,  and  within  the 


(?/)  Jt  was  held  in  tins  case  that  tliere  was  a  sumcient  averment  that  the  cir- 
cuit court  liad  jurisdiction,  and  that  tlie  injured  party  was  within  and  under  the 
protection  of  the  United  States  and  in  the  peace  tliereof.  U.  S.  v.  Flumer,  3 
Clitr.  28. 

{z)  Lewis's  C.  L.  644.  See  U.  S.  v.  Moran,  Phil.  April  Sess.  1837,  where 
Jud^e  Hopkins  sustained  a  capital  conviction  u^jon  an  indictment  possessing  the 


■same  general  ieatures  as  the  present 

200 


HOMICIDE.  (179) 

jurisdiction  of  this  court,  with  force  and  arms,  in  and  upon 
one  C.  D.,  being  the  second  mate  of  the  said  vessel,  piratically, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  make 
an  assault ;  and  that  the  said  A.  B.,  with  a  certain  handspike  of 
the  value  of  ten  cents,  which  he  the  said  A.  B.  in  both  his 
hands  then  and  there  had  and  held,  him  the  said  C.  D.,  in  and 
upon  the  right  side  of  the  head  of  him  the  said  C.  D.,  did 
strike  and  beat,  giving  the  said  C.  D.,  then  and  there,  with  the 
handspike  aforesaid,  in  and  upon  the  right  side  of  the  head  of 
him  the  said  C.  D.,  one  mortal  wound  and  fracture,  of  the 
length  of  five  inches,  and  of  the  depth  of  two  inches,  of  which 
said  mortal  wound  and  fracture  the  said  C.  D.  then  and  there 
instantly  died.  And  so  the  grand  inquest  aforesaid,  upon 
their  oaths  and  affirmations  aforesaid,  do  say,  that  the  said  A. 
B.  the  said  C.  D.,  in  manner  and  form  aforesaid,  piratically, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill 
and  murder,  contrary  to  the  form  of  the  act  of  congress  in 
such  case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  United  States  of  America. 

And  the  grand  jury  aforesaid,  inquiring  as  aforesaid,  upon 
their  oaths  and  affirmations  aforesaid,  do  further  ]>resent,  that 
after  the  commission  of  the  said  crime  on  the  high  seas,  and 
within  the  jurisdiction  of  this  court,  the  said  A.  B.  was  first 
brought,  to  wit,  on  or  about  the  day  of  in  the  year, 

etc.,  into  the  said  eastern  district  of  Pennsylvania.(a) 

(179)  Striking  with  a  glass  bottle  on  the  forehead^  on  hoard  an 
American  vessel  in  a  foreign  jurisdiction.  (  With  commence- 
ment and  conclusion  as  adopted  in  the  federal  courts  of  Mas- 
sachusetts.{b) 

The  jurors  of  the  said  United  States  within  and  for  the  said 
district,  upon  their  oath  present,  that  F.  M.,  late  of  Boston,  in 
said  district,  mariner,  on  the  day  of  in  the  3'ear, 

etc.,  in  and  on  board  of  the  barque  "Eliza,"  then  lying  within 
the  jurisdiction  of  a  foreign  state  or  sovereign,  to  wit,  at  one  of 
the  islands  called  the  Navigators'  Islands,  in  the  South  Pacific, 

(a)  See  supra,  17,  18;   infra,  239,  note. 

[h]  This  iorm,  as  well  as  several  tliat  will  follow,  was  obtained  through  the 
valuable  aid  of  F.  O.  Prince,  Esq.,  of  Boston. 

201 


(180)  OFFENCES    AGAINST    THE    PERSON. 

the  said  barque  then  and  there  being  a  ship  or  vessel  of  the 
United  States,  belonging  to  certain  citizens  of  the  United 
States,  whose  names  are  to  the  jurors  aforesaid  unknown,  with 
force  and  arms,  in  and  upon  one  P.  M.,  feloniously  and  wil- 
fully did  make  an  assault,  and  that  the  said  F.  M.,  with  a  cer- 
tain glass  bottle  of  the  value  of  ten  cents,  which  he  the  said 
F.  M.  in  his  right  hand  then  and  there  held,  him  the  said  P. 
M.,  in  and  upon  the  head  of  him  the  said  P.  M.,  then  and  there 
feloniously  and  wilfully  did  strike,  giving  unto  him,  the  said  P. 
M.,  then  and  there,  with  the  said  glass  bottle,  by  the  stroke 
aforesaid,  in  the  manner  aforesaid,  and  upon  the  head  of  him 
the  said  P.  M.,  one  mortal  wound,  of  the  depth  of  one  inch, 
and  of  the  length  of  one  inch,  of  which  said  mortal  wound  he 
the  said  P.  M.,  on  and  from  the  day  of  aforesaid, 

until  the  day  of  on  board  said  barque,  then  lying 

at  the  said  island,  did  languish,  and  languishing  did  live;  on 
which  said  day  of  aforesaid,  the  said  P.  M.,  on  the 

high  seas  (the  said  barque  having  then  left  the  said  island),  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  said 
United  States,  of  the  said  mortal  wound  died.  And  so  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said 
F.  M.  the  said  P.  M.,  in  manner  and  form  aforesaid,  feloniously 
did  kill  and  slay,  against  the  peace  and  dignity  of  the  said 
United  States,  and  contrary  to  the  form  of  the  statute  of  the 
United  States  in  such  case  made  and  provided. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  afterwards,  to  wit,  on  the  day  of  in  the 

year,  etc.,  the  said  F.  M.  was  first  apprehended  in  ISTantucket, 
in  the  said  district  of  Massachusetts,  which  was  the  district  in 
which  the  said  F.  M.  was  first  brought  after  the  commission  of 
the  offence  aforesaid. 

(180)  Against  a  mother  for  drowning  her  child^  by  throwing  it  from  a 
steamboat  on  Long  Island  Sound.  {Commencement  and  con- 
clusion as  adopted  in  the  federal  courts  of  Massac husetts.){c) 

The  jurors,  etc.,  do  present,  that  late  of  in  the 

district  of  M.,  wife  of  of  in  on  the  day 

(c)  See  U.  S.  v.  Hewson,  7  Bost.  L.  R.  361  ;  Wh   Cr.  L.  8th  ed.  §§  44,  309. 

202 


HOMICIDE.  (180) 

of  in  the  waters  of  Long  Island  Sound,  the  same  being 

an  arm  of  the  sea,  within  the  admiralty  and  maritime  juris- 
diction of  the  United  States,  and  out  of  the  jurisdiction  of  any 
particular  state,  in  and  on  board  of  the  steamer  "  M.,"  the  same 
then  and  there  being  an  American  ship  or  vessel,  in  and  upon 
the  female  child  of  her  the  said  the  said  female  child  then 

and  there  being  an  infant  of  tender  age,  to  wit,  about  the  age 
of  three  weeks,  whose  name  is  as  yet  unknown  to  the  jurors 
aforesaid,  feloniously,  wilfully,  and  of  her  malice  aforethought, 
did   make  an  assault,  and  that  the  said  then  and  there, 

feloniously,  wilfully,  and  of  her  malice  aforethought,  did  take 
the  said  female  child  into  both  the  hands  of  her  the  said 
and  did  then  and  there  feloniously,  wilfully,  and  of  her  malice 
aforethought,  cast  and  throw  the  said  female  child  from  on  board 
the  said  steamer  "  M."  into  the  waters  of  the  said  Long  Island 
Sound,  by  reason  of  which  casting  and  throwing  of  the  said  fe- 
male child  into  the  waters  aforesaid,  the  said  female  child,  in  the 
said  Long  Island  Sound,  by  the  waters  aforesaid,  was  then  and 
there  choked,  suffocated,  and  drowned,  of  which  said  choking, 
suffocating,  and  drowning,  the  said  female  child  then  and  there 
instantly  died.  And  the  jurors  aforesaid,  on  their  oath  afore- 
said, do  say,  that  the  said  the  said  female  child,  in  the 
said  arm  of  the  sea,  within  the  admiralty  and  maritime  juris- 
diction of  the  United  States,  and  without  the  jurisdiction  of 
any  particular  state,  in  the  manner  and  by  the  means  aforesaid, 
feloniously,  wilfully,  and  of  her  malice  aforethought,  did  kill 
and  murder,  against  the  peace  and  dignity  of  the  said  United 
States,  and  contrary  to  the  form,  etc. 

Second  count. 

{Omitting  averment  of  relationship^  and  charging  the  sex  to  he 
unknown.) 

And  the  jurors,  etc.,  further  present,  that  late  of 

in  the   district  of  M.,  wife  of  of  in  on  the 

day  of  in  the  waters  of  the  Long  Island  Sound, 

the  same  being  an  arm  of  the  sea,  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States,  and  out  of  the  juris- 
diction of  any  particular  state,  in  and  on  board  of  the  steamer 
"M.,"  the  same  then  and  there  being  an  American  ship  or  ves- 

203 


(181)  OFFENCES    AGAINST    THE    PERSON. 

sel,  in  and  upon  a  certain  child,  the  said  child  then  and  there 
being  an  infant  of  tender  age,  to  wit,  under  the  age  of  one  year, 
whose  name  and  sex  are  unknown  to  the  jurors  aforesaid,  feloni- 
ously, wilfully,  and  of  her  malice  aforethought,  did  make  an 
assault ;  and  that  the  said  then  and  there  feloniously, 

wilfully,  and  of  her  malice  aforethought,  did  take  the  said 
child  into  both  the  hands  of  her  the  said  and  did  then 

and  there  feloniously,  wilfull}'',  and  of  her  malice  aforethought, 
cast  and  throw  the  said  child  from  on  board  the  said  steamer 
"  M."  into  the  waters  of  said  Long  Island  Sound,  by  reason  of 
which  casting  and  throwing  of  the  said  child  into  the  waters 
aforesaid,  the  said  child,  in  the  said  Long  Island  Sound,  by  the 
waters  aforesaid,  was  then  and  there  choked,  suifocated,  and 
drowned,  of  which  said  choking,  suffocating,  and  drowning, 
the  said  child  then  and  there  instantly  died.  And  tlfe  jurors 
aforesaid,  on  their  oath  aforesaid,  do  say,  that  the  said 
the  said  child  on  the  said  arm  of  the  sea,  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States,  and  without 
the  jurisdiction  of  any  particular  state,  in  the  manner  and  by 
the  means  aforesaid,  feloniously,  wilfully,  and  of  her  malice 
aforethought,  did  kill  and  murder,  against  the  peace  and  dig- 
nity of  the  said  United  States,  and  contrary  to  the  form,  etc. 

And  the  jurors,  etc.,  on,  etc.,  further  present,  that  afterwards, 
to  wit,  on  the  said  the  said  w^as  first  apprehended 

at  in  said  District  of  Massachusetts,  and  that,  etc.(t;?) 

(181)  3Iurder  on  the  high  seas,  with  a  hatchet.{e) 

Southern  District  of  New  York,  ss.  The  jurors  of  the  United 
States  of  America,  within  and  for  the  district  and  circuit  afore- 
said, on  their  oath  present,  that  of  the  city  and  county  of 
Ifew  York,  in  the  district  and  circuit  aforesaid,  mariner, 
of  the  said  city  and  county,  mariner,  and  of  the  said  city 
and  county,  mariner,  not  having  the  fear  of  God  before  their 
eyes,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  on  the  day  of  in  the  year,  etc.,  with  force  and 
arms,  upon  the  high  seas,  out  of  the  jurisdiction  of  any  partic- 

(<^)   See  .sw/7ra,  17,  18;   infra,  239,  note. 

(e)  On  this  indictment  the  defendants  were  convicted  in  the  circuit  court  for 
the  southern  district  of  New  York  in  U.  S.  v.  Wilhelm  et  al. 

204 


HOMICIDE.  (181) 

ular  state  of  the  said  United  States,  within  the  admiralty  and 
maritime  jurisdiction  of  the  said  United  States,  and  within  the 
jurisdiction  of  this  court,  on  board  of  a  certain  vessel,  being  a 
called  the  owned  by  a  certain  person  or  persons 

whose  names  are  to  the  said  jurors  unknown,  then  being  a  citi- 
zen or  citizens  of  the  United  States  of  America,  in  and  upon 
one  in  the  peace  of  God  and  of  the  said  United  States, 

then  and  there  being,  on  board  the  said  called  the         on 

the  high  seas,  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  jurisdiction  of  this  court,  piratically,  feloniously, 
wilfully,  and  of  their  malice  aforethought,  did  make  an  assault; 
and  that  the  said  with  a  certain  instrument  of  wood  and 

iron  called  a  hatchet  {or  other  instrument),  of  the  value  of 
which  the  said  in  his  hand  then  and  there  had  and 

held,  the  said  in  and  upon  the  head,  face,  breast,  and  other 

parts  of  the  body  of  him  the  said  then  and  there  being, 

on  the  high  seas,  in  the  aforesaid,  and  out  of  the  jurisdic- 

tion of  any  particular  state,  and  within  the  jurisdiction  of  this 
court,  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  did  strike,  giving  to  the  said  then  and  there, 

with  the  aforesaid,  by  such  striking  with  the  afore- 

said, in  manner  aforesaid,  in  and  upon  the  head,  face,  breast, 
and  other  parts  of  the  body  of  him  the  said  several  mortal 

strokes,  wounds,  and  bruises,  to  wit,  one  mortal  wound  on 
of  him  the  said  of  the  length  of  inches,  and  of  the 

depth  of  inches,  one  mortal  wound  on  the  of  him 

the  said  of  the  length  of  inches,  and  of  the  depth 

of  inches,  and  one  mortal  wound  on  the  of  him  the 

said  of  the  length  of  inches,  and  of  the  depth  of 

inches,  of  which  said  mortal  wounds  the  said  from 

the  said  day  of  in  the  year  aforesaid,  until  the 

day  of  the  same  month  {or  otherwise)  of  in  the  year  afore- 

said, on  the  high  seas  aforesaid,  out  of  the  jurisdiction  of  any 
particular  state,  and  within  the  jurisdiction  of  this  court,  did 
languish,  and  languishing  did  live;  on  which  said  day  of 

in  the  year  aforesaid,  the  said  .  on  the  high  seas 
aforesaid,  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  jurisdiction  of  this  court,  of  the  said  mortal  wounds, 
died.     And  that  the  said  and  then  and  there  feloni- 

205 


(181)  OFFENCES   AGAINST    THE    PERSON. 

ously,  wilfully,  aud  of  their  malice  aforethought,  were  present 
aiding,  abetting,  eomfortitig,  assisting,  and  maintaining  the 
said  in  the  felony  and  murder  aforesaid,  in  manner  and 

form  aforesaid,  to  do  and  commit,  and  so  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  say,  that  the  said  {here  insert 

the  names  of  all)  in  manner  and  form  aforesaid,  piratically,  felo- 
niously, wilfully,  and  of  their  malice  aforethought,  the  said 
did  kill  and  murder,  against  the  peace  and  dignity  of  the 
United  States  of  America,  and  the  form  of  the  statute  of  the 
said  United  States  in  such  case  made  and  provided. 

Second  count. 

{Same  as  preceding  county  inseiiing  the  name  of  one  other  as 
principal ;  and  also,  instead  of  "  being  a  called  the 

owned  by  a  certain  person  or  persons,  whose  names  are  to  the 
said  jurors  unknown,  then  beiiig  a  citizen  or  citizens  of  the 
United  States  of  America,"  insert  "  being  a  called  the 

owned  by         citizens  {or  a  citizen)  of  the  United  States 
of  America.") 

Third  count. 

{Same  as  preceding  count,  inserting  the  name  of  one  other  persori 
as  principal  if  as  many  as  three  were  engaged) 

Fourth  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  of  the  city  and  county  of  New  York,  in  the 

district  and  circuit  aforesaid,  mariner,  of  the  said  city  and 

county,  in  the  district  and  circuit  aforesaid,  mariner,  and 
of  the  said  city  and  county,  in  the  district  and  circuit  aforesaid, 
mariner  {if  as  many  are  specified  in  the  complaint),  not  having  the 
fear  of  God  before  their  eyes,  but  being  moved  and  seduced  by 
the  instigation  of  the  devil,  on  the  day  of  in  the 

year,  etc.,  with  force  and  arms,  upon  the  high  seas,  out  of  the 
jurisdiction  of  any  particular  stateof  the  said  United  States, with- 
in the  admiralty  and  maritime  jurisdiction  of  the  said  United 
States,  and  within  the  jurisdiction  of  this  court,  on  board  of  a 
certain  vessel  being  a  called  the  owned  by 

citizens  {or  a  citizen)  of  the  United  States  of  America,  in  and 
20G 


HOMICIDE.  (181) 

upon  one  in  the  peace  of  God  and  the  said  United  States, 

then  and  there  being,  on  board  the  said  called  the 

on  the  high  seas,  out  of  the  jurisdiction  of  any  particular  state, 
within  the  admiralty  and  maritime  jurisdiction  of  the  said 
United  States  of  America,  and  within  the  jurisdiction  of  this 
court,  piratically,  feloniously,  wilfully,  and  of  their  malice 
aforethought,  did  make  an  assault,  and  that  the  said 
{specify  one),  with  a  certain  instrument  of  called  a 

of  the  value  of  which  he  the  said  then  and  there  in 

his  hand  had  and  held,  and  the  said  {specify  another), 

with  a  certain  other  instrument  of  called  a  of  the 

value  of  which  he  the  said  in  his  hand  then 

and  there  had  and  held,  and  the  said  {specify  another  if  as 

many  as  three  were  engaged),  with  a  certain  instrument  of 
of  the  value  of  which  he  the  said  in  his  hand 

then  and  there  had  and  held,  the  said  in  and  upon  the 

head,  face,  breast,  and  other  parts  of  the  body  of  him  the  said 

then  and  there  being  on  the  high  seas,  in  the  afore- 

said, out  of  the  jurisdiction  of  any  particular  state,  and  within  the 
jurisdiction  of  this  court,  then  and  there,  feloniously,  wilfully, 
and  of  their  malice  aforethought,  did  strike,  giving  to  the  said 

then  and  there,  with  the  aforesaid,  by  such  striking, 

with  the  aforesaid,  in  manner  aforesaid,  in  and  upon  the 

head,  face,  breast,  and  other  parts  of  the  body  of  him  the  said 
several  mortal  strokes  and  wounds,  to  wit,  one  mortal  stroke  and 
wound  on  the  of  him  the  said  of  the  length  of 

inches,  and  of  the  depth  of  inches,  one  mortal  stroke  and 

wound  on  the  of  him  the  said  of  the  length  of 

inches,  and  of  the  depth  of  inches,  one  mortal  stroke  and 

wound  on  the  side  of  the  breast  of  him  the  said  of 

the  length  of  inches,  and  of  the  depth  of  inches,  and 

one  other  mortal  stroke  and  wound  on  the  of  him  the  said 

of  the  length  of  inches,  and  of  the  depth  of 

inches,  of  which  said  mortal  strokes  and  wounds  the  said 
from  the  said  day  of  in  the  year,  etc.,  on  the  high 

seas  aforesaid,  out  of  the  jurisdiction  of  any  particular  state, 
and  within  the  jurisdiction  of  this  court,  did  languish,  and 
languishing  did  live,  until  the  day  of  the  same  month 

{or  otherwise)  of  in  the  year  last  aforesaid,  on  which  said 

207 


(182)  OFFENCES   AGAINST    THE   PERSON. 

day  of  in  the  year  last  aforesaid,  the  said  on 

the  high  seas  aforesaid,  out  of  the  jurisdiction  of  any  particular 
state,  and  within  the  jurisdiction  of  this  court,  of  the  said  mor- 
tal strokes  and  wounds  died. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say,  that 
they  the  said  him  the  said  in  the  manner  and  by 

the  means  last  aforesaid,  on  the  high  seas,  out  of  thejurisdiction 
of  any  particular  state,  and  within  the  jurisdiction  of  this  court, 
piratically,  feloniously,  wilfully,  and  of  their  malice  afore- 
thought, the  said  did  kill  and  murder,  against,  etc.,  and 
against,  etc. 

Final  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  the  southern  district  of  New  York,  in  the 
second  circuit  aforesaid,  is  the  district  and  circuit  in  which  the 
said  oifenders,  viz.  the  said  were  first  brought  and  appre- 

hended for  the  said  offences.(/) 

(182)  Manslaughter  on  the  high  seas.{g) 

First  count.     Drowning,  etc.,  on  a  vessel  whose  name  was 
unknown,  etc. 

The  grand  inquest  of  the  United  States  of  America,  inquiring 

(y)  As  a  matter  of  course,  -wliere  the  party  or  parties  have  not  been  arrested, 
but  where  the  indictment  is  drawn  for  the  purpose  of  issuing  a  bench  warrant, 
the  count  in  concUision  is  not  to  be  put  in.  AV^here  an  otience  has  been  com- 
mitted against  the  hiws  of  the  United  States  of  America,  under  the  admiralty 
and  maritime  jurisdiction,  in  or  near  a  foreign  port  or  phace,  in  and  on  board  of 
a  vessel  belonging  in  whole  or  in  part  to  a  citizen  or  citizens  of  the  United  States 
of  America  (see  act  of  Congress  of  March  3d,  1825,  §  5),  the  indictment  should, 
after  beginning  in  the  usual  way,  proceed  thus  :  on  the  high  seas,  near,  etc.,  or, 
at  a  port  or  place  within  the  jurisdiction  of  a  foreign  state  or  sovereign,  to  wit 
(name  distinctly  the  port  or  place,  and  the  state  or  sovereign  under  wliose  juris- 
diction it  is),  on  waters  out  of  the  jurisiliction  of  any  particular  state  of  tlie  said 
United  States  of  America,  within  the  admiralty  and  maritime  jurisdiction  of  the 
said  United  States,  and  within  thejurisdiction  of  this  court,  in  and  on  board  of  a 
certain  American  vessel,  being  a  called  the  belonging  in  whole  or  in 

part  to  a  certain  person  or  persons,  whose  name  or  names  are  to  tlie  said  jurors 
unknown,  then  and  still  being  a  citizen  or  citizens  of  the  said  United  States  of 
America,  etc. 

((/)  U.  S.  r.  Holmes,  1  Wall.  Jr.  1.  The  defendant  was  convicted  under  this 
indictment,  and  was  sentenced  to  a  small  punishment,  but  was  afterwards  par- 
doned by  the  President.  The  case  was  of  great  singularity,  involving  the  ques- 
tion, whetiier  a  mariner  in  a  case  of  extreme  necessity,  is  justiiied  in  throwing 
overboard  a  passenger  from  a  boat  unable  to  hold  the  two.  See  Wh.  Cr.  L.  8th 
wl.  §§  511,  1SG9. 

208 


HOMICIDE.  (^82) 

in  and  for  the  eastern  district  of  Pennsylvania,  on  tlieir  oaths 
and  affirmations  respectively,  do  present,  that  A.  W.  H.,  late  of 
the  district  aforesaid,  mariner,  not  having  the  fear  of  God 
before  his  eyes,  but  being  moved  and  seduced  by  the  instigation 
of  the  devil,  on  the  day  of  in  the  year,  etc.,  upon 

the  high  seas,  witliin  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  and  out  of  the  jurisdiction  of  any  partic- 
ular state,  and  within  the  jurisdiction  of  this  court,  on  board  of 
a  certain  vessel,  to  wit,  a  vessel  the  name  wliereof  is  to  the 
jurors  unknown,  then  and  there  belonging  to  a  citizen  of  the 
United  States,  to  wit,  one  J.  P.  V.,  late  of  the  district  aforesaid, 
with  force  and  arms,  in  and  upon  a  person  known  and  commonly- 
called  by  the  name  of  F.  A.,  in  and  on  board  of  said  vessel,  in 
the  peace  of  God  and  of  the  United  States,  then  and  there  being, 
unlawfully  and  feloniously  did  make  an  assault ;  and  that  he 
the  said  A.  W.  H.,  then  and  there  on  board  of  the  said  vessel, 
upon  the  high  seas,  within  the  admiralty  and  maritime  juris- 
diction of  the  United  States,  and  out  of  the  jurisdiction  of  any 
particular  state,  and  within  the  jurisdiction  of  this  court,  with 
force  and  arms,  unlawfully  and  feloniously  did  cast  and  throw 
the  said  F.  A.  from  and  out  of  the  said  vessel  into  the  high 
seas  there,  by  means  of  which  said  casting  and  throwing  of  him 
the  said  F.  A.  from  and  out  of  the  said  vessel  into  the  high  seas 
aforesaid,  he  the  said  F.  A.,  in  and  with  the  water  thereof,  upon 
the  high  seas,  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  and  out  of  the  jurisdiction  of  any  partic- 
ular state,  and  within  the  jurisdiction  of  this  court,  then  and 
there  was  suffocated  and  drowned,  of  which  said  suffocation  and 
drowning  he  the  said  F.  A.  did  then  and  there  instantly  die. 
And  so  the  grand  inquest  aforesaid,  inquiring  as  aforesaid,  on 
their  oaths  and  affirmations  aforesaid,  do  say,  tliat  the  said  A. 
W.  H.  him  the  said  F.  A,,  in  the  manner  and  by  the  means 
aforesaid,  unlawfully  and  feloniously  did  kill,  contrary,  etc.,  and 
against,  etc. 

Second  count.     Same  on  a  long-boat  belonging  to  J.  P.  F".,  etc. 

And  the  grand  inquest  aforesaid,  inquiring  as  aforesaid,  on 
their  oaths  and  affirmations  aforesaid,  do  further  present,  that 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  the  said  A. 

VOL.  I.  — 14  •  ■zO\) 


(182)  OFFENCES    AGAINST    THE    PERSON. 

"W.  H.,  not  having  the  fear  of  God  before  his  eyes,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  upon  the 
high  seas,  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  any  particular 
state,  and  within  the  jurisdiction  of  this  court,  on  board  of  a 
certain  vessel,  to  wit,  the  long-boat  of  the  ship  "W.  B.,"  then 
and  there  belonging  to  a  citizen  of  the  United  States,  to  wit, 
one  J.  P.  v.,  late  of  the  district  aforesaid,  with  force  and  arms, 
in  and  upon  a  person  known  and  commonly  called  by  the  name 
of  F.  A.,  in  and  on  board  of  said  vessel,  in  the  peace  of  God  and 
of  the  United  States,  then  and  there  being,  unlawfully  and  felo- 
niously did  make  an  assault ;  and  that  he  the  said  A.  W.  H. 
then  and  there,  on  board  of  the  said  vessel  upon  the  high  seas, 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  jurisdiction  of  this  court,  with  force  and  arms,  un- 
lawfully and  feloniously  did  cast  and  throw  the  said  F.  A.  from 
and  out  of  the  said  vessel  into  the  high  seas,  by  means  of  which 
said  casting  and  throwing  of  him  the  said  F.  A.,  from  and  out 
of  the  said  vessel  into  the  high  seas  aforesaid,  he  the  said  F.  A., 
in  and  with  the  waters  thereof,  upon  the  high  seas  aforesaid, 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  state,  and 
within  the  jurisdiction  of  this  court,  then  and  there  was  suffo- 
cated and  drowned,  of  which  said  suffocation  and  drowning  he 
the  said  F.  A.  did  then  and  there  instantly  die.  And  so,  etc. 
{as  in  first  count). 

Final  count. 

And  the  grand  inquest  aforesaid,  inquiring  as  aforesaid,  on 
their  oaths  and  affirmations  aforesaid,  do  further  present,  that 
after  the  commission  of  the  crimes  so  as  aforesaid  committed  on 
the  high  seas,  and  out  of  the  jurisdiction  of  any  particular  state, 
to  wit,  on  the  day  of  the  said  A.  W.  H.,  the  ofi'ender 

aforesaid,  was  apprehended  in  the  eastern  district  of  Pennsyl- 
vania.(/i) 

(A)  See  sujsra,  17,  18;  infra,  239,  note. 

210 


CONCEALING  DEATH  OF  BASTARD  CHILD.         (183) 

(193)  Misdemeanor  in  concealing  death  of  bastard  child  hy  casting  it 
in  a  well,  under  the  Pennsylvania  statute.{i) 

And  the  inquest  aforesaid,  on  their  oaths  and  affirmations 

aforesaid,  do  further  present,  that  the  said  R.  P.,  on  the  said 

day  of  in  the  year  aforesaid,  being  big  with  a  male 

(i)   See  generally  under  this  head,  Wh.  Cr.  L.  8th  ed.  §§  600  et  seq. 

It  is  not  necessary  in  Pennsylvania  to  set  forth  in  what  manner  or  b}^  what 
arts  the  mother  endeavored  to  conceal  the  death  of  the  child.  Boyle  v.  Com.,  2 
S.  &  R.  40.  It  is  a  fatal  objection  that  an  indictment  for  concealing  the  death 
does  not  directly  aver  the  death  of  the  child.  It  is  not  sufficient  to  aver  that  the 
defendant  "  did  endeavor  privately  to  conceal  the  death  of  the  said  female  bas- 
tard child."  Douglas  v.  Com.,  8  Watts,  535;  Com.  v.  Clark,  2  Ash.  105. 
Whether  the  child  be  born  dead  or  alive  would  seem  to  be  immaterial.  Douglas 
V.  Com.,  8  Watts,  535,  Rogers,  J.  See  R.  v.  Coxhead,  1  C.  &  K.  623.  The 
concealment  is  not  conclusive  evidence  of  the  fact,  unless  the  circumstances  at- 
tending it  are  sufficient  to  satisfy  the  jury  that  the  mother  did  wilfully  and  ma- 
liciously destroy  the  child.     Penn.  v.  M'Kee,  Add.  2. 

Under  the  North  Carolina  act  against  the  mother,  for  concealing  the  birth  of 
her  bastard  child,  it  is  said  that  it  is  not  incumbent  on  the  prosecution  to  show 
that  the  child  was  born  alive,  but  the  burden  of  showing  the  contrary  is  on  the 
part  of  the  accused  (see  R.  v.  Douglas,  1  Mood.  C.  C.  462)  ;  and  that  the  corpun 
delicti  is  concealing  the  death  of  a  being  upon  whom  the  crime  of  murder  would 
have  been  committed ;  and,  therefore,  if  the  child  be  born  dead,  concealment  is 
not  an  offence  against  the  statute.  State  v.  Joiner,  4  Hawks,  350.  A  mother 
having  caused  the  body  of  her  child  to  be  buried  privately,  her  object  being  to 
conceal  its  birth,  it  was  held,  under  the  stat.  43  Geo.  III.  c.  58,  and  9  Geo.  IV. 
c.  31,  s.  14,  from  which  the  American  acts  differ  but  little,  that  the  fact  of  her 
having  previously  acknowledged  the  birth  to  several  persons,  did  not  prevent  her 
conviction  of  the  concealment.  R.  v.  Douglas.  1  Mood.  C.  C.  462.  Where  the 
woman  was  delivered  of  a  child,  the  dead  body  of  Avhich  was  found  in  a  bed 
amongst  the  feathers,  but  there  was  no  evidence  to  show  who  put  it  there,  and 
it  appeared  that  the  mother  had  sent  for  a  surgeon  at  the  time  of  her  confine- 
ment, and  had  prepared  child's  clothes,  the  judge  directed  an  acquittal  of  the 
charge  for  endeavoring  to  conceal  the  birth.  R.  v.  Higley,  4  C.  &  P.  366. 
Where  a  woman  delivered  of  a  seven  months'  child,  threw  it  down  the  privy, 
and  it  appeared  that  another  woman,  charged  as  an  accomplice,  knew  of  the 
birth  ;  upon  an  indictment  for  murder  against  the  two,  the  jury  found  the  motlier 
guilty  of  the  concealment ;  and  the  point  being  saved  upon  a  doubt,  whether  it 
was  a  case  within  the  stat.  43  Geo.  III.  c.  58,  as  a  second  person  knew  of  the 
birth,  the  judges  held  that  the  act  of  throwing  the  child  down  the  i)rivy  was 
evidence  of  the  endeavor  to  conceal  the  birth,  and  that  the  conviction  was  right. 
R.  V.  Cornwall,  R.  &  R.  336.  An  indictment  on  stat.  9  Geo.  IV.  c.  31,  s.  14, 
for  endeavoring  to  conceal  the  birth  of  a  dead  child,  need  not  state  whether  the 
child  died  before,  at,  or  after  its  birth.  Reg.  v.  Coxhead,  1  C.  &  K.  623.  An 
indictment  which  charged  that  the  defendant  did  cast  and  throw  the  dead  body 
of  the  child  into  soil  in  a  certain  privy,  "and  did  thereby,  then  and  there,  un- 
lawfully dispose  of  the  dead  body  of  the  said  child,  and  endeavor  to  conceal  the 
birth  thereof,"  sufficiently  charges  the  endeavor  to  conceal  the  birth,  as  the  word 
"thereby"  applies  to  the  endeavor,  as  well  as  to  the  disposing  of  the  dead  body. 
R.  V.  Douglas,  1  Mood.  C.  C.  462. 

By  the  act  of  22d  April,  1794  (Purd.  532),  the  grand  jury  may  join  a  count 
for  murder  with  a  count  for  concealment.  For  other  forms  in  such  cases,  see 
supra,   15  7-159. 

211 


(184a)  OFFENCES  AGAINST  THE  PEKSON. 

child,  the  same  day  and  year,  in  the  county  aforesaid,  by  the 
providence  of  God  did  bring  forth  the  said  chikl  of  the  body  of 
her  the  said  R.,  alone  and  in  secret,(J)  which  said  male  child  if 
it  were  born  alive  would  by  the  laws  of  this  commonwealth  be 
a  bastard ;  and  that  the  said  R.  afterwards,  to  wit,  on  the 
day  of  in  the  year  aforesaid,  as  soon  as  the  said  male  child 

was  born,  did  endeavor  privately  to  conceal  the  death  of  the 
said  child,(Z;)  and  did  take  the  said  child  into  both  the  hands  of 
her  the  said  R.,  and  did  then  and  there  wilfully  and  privately 
cast  and  throw  the  said  child  into  and  down  the  well  of  a  cer- 
tain privy  there  situate,  so  that  it  might  not  come  to  light, 
whether  the  said  child  Avas  born  dead  or  alive,  or  whether  it 
were  murdered  or  not,  contrary,  etc.,  and  against,  etc. 

(184)  Same  where  means  of  concealment  are  not  stated.ij) 

That  J.  B.,  late  of  the  county  aforesaid,  spinster,  on,  etc.,  at, 
etc.,  b.ing  big  with  a  certain  female  infant,  the  same  day  and 
year,  at  the  county  aforesaid,  did  bring  forth  the  said  infant  of 
the  body  of  her  the  said  J.  B.,  alone  and  in  secret,  which  same 
infant,  so  being  brought  forth  alive,  was  by  the  laws  of  this 
commonwealth  a  bastard;  and  that  the  said  J.  B.  afterw^ards,  to 
wit,  the  same  day  and  year  aforesaid  (the  said  female  infant 
having  on  the  day  and  year  last  aforesaid,  at  the  township 
and  county  aforesaid,  died),  did  endeavor  privately  to  conceal 
the  death  of  the  said  female  infant,  so  that  it  might  not  come 
to  light  whether  the  said  female  infant  was  born  dead  or  alive, 
or  whether  the  said  female  infant  was  murdered  or  not,  con- 
trary, etc.,  and  against,  etc. 

(184a)  Form  used  in  Philadelphia  in  1880. 

First  count. 

That  late  of  the  said  county  on  the  day 

of  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  at  the  county  aforesaid,  and  within  the  juris- 

(y)  The  facts  must  be  specially  stated.     Foster  v.  Com.,  12  Bush,  373. 

{k)  The  time  of  death  need  not  be  stated.     R.  v.  Coxhead,  1  C.  &  K.  623. 

{/)  See  Boyle  v.  Cora.,  2  S.  &  R.  40,  where  this  count  was  sustained.  The 
usual  form,  however,  is  to  charge  the  object  of  the  offence  as  a  -'child,"  and  not 
an  "infant,"  and  I  Avould  add  another  count  so  stating  it,  notwithstanding  the 
sanction  by  the  supreme  court  of  the  form  in  the  text. 

212 


CONCEALING  DEATH  OF  BASTARD  CHILD.         (184a) 

diction  of  this  court,  with  force  and  arms,  etc.,  being  big  and 
pregnant  with  a  certain  child,  afterwards,  to  wit,  on  the 

said  day  of  in  the   year   aforesaid,  at   the   county 

aforesaid,  and  within  the  jurisdiction  of  this  court,  did  bring 
forth  of  the  body   of   her   the  said  the  said  chiki 

alive,  which  said  child  by  the  laws  of  the  commonwealth 

of  Pennsylvania  aforesaid,  then  and  there  was  a  bastard. 

And  the  grand  inquest  aforesaid,  upon  their  oaths  and  affir- 
mations aforesaid,  do  further  present,  that  afterwards,  to  wit, 
on  the   said  day  of  in   the   year   aforesaid,  at   the 

county  aforesaid,  and  within  the  jurisdiction  of  tliis  court,  the 
said  bastard  child  so  brought  forth  of  the  body  of  the 

said  as  aforesaid,  did  die. 

And  the  grand  inquest  aforesaid,  upon  their  oaths  and  affir- 
mations aforesaid,  do  further  present,  that  the  said  after- 
wards, to  wit,  on  the  said  day  of  in  tlie  year  afore- 
said, at  the  county  aforesaid,  and  within  the  jurisdiction  of  this 
court,  the  bastard  child  aforesaid,  so  brought  forth  of  the 
body  of  her  the  said  as  aforesaid,  and  dead  as  aforesaid, 
did  then  and  there  unlawfully  and  wilfully  conceal,  and  did 
then  and  there  unlawfully  and  wilfully  conceal  the  death  of  the 
said  bastard  child,  so  that  it  might  not  come  to  light 
whether  the  said  bastard  child  had  been  born  dead  or 
alive,  or  whether  the  said  bastard  child  was  murdered  or 
not,  contrarj',  etc. 

Second  count. 

And  the  grand  inquest  aforesaid,  upon  their  oaths  and  affir- 
mations aforesaid,  do  further  present,  that  the  said  on 
the  said  day  of  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  at  the  county  aforesaid,  and 
within  the  jurisdiction  of  this  court,  being  big  and  pregnant 
with  a  certain  child,  on  the  said  day  of  in  the 
year  aforesaid,  at  the  county  aforesaid,  and  within  the  juris- 
diction of  this  court,  did  bring  forth  the  said  child  of  the 
body  of  her  the  said  which  said  child  theretofore 
died  in  the  womb  of  her  the  said  and  being  so  brought 
forth  as  aforesaid,  then  and  there  was  dead  ;  and    which  suid 

213 


(185)  OFFENCES  AGAINST  THE  PERSON. 

child  if  born  alive,  by  the  laws  of  the  commonwealth  of 
Pennsylvania  aforesaid,  would  then  and  there  be  a  bastard. 

And  the  grand  inquest  aforesaid,  upon  their  oaths  and  affir- 
mations aforesaid,  do  further  present,  that  the  said  after- 
wards, to  wit,  on  the  said  day  of  in  the  year  afore- 
said, at  the  county  aforesaid,  and  within  the  jurisdiction  of  this 
court,  the  bastard  child  aforesaid,  so  brought  forth  of  the 
body  of  her  the  said  as  aforesaid,  and  dead  as  aforesaid, 
did  unlawfully  and  wilfully  conceal,  and  did  then  and  there 
unlawfully  and  wilfully  conceal  the  death  of  the  bastard 
child  aforesaid,  so  that  it  might  not  come  to  light  whether  the 
said  bastard  child  was  born  dead  or  alive,  or  whether  the 
said             bastard  child  was  murdered  or  not,  contrary,  etc.(m) 

(185)  Endeavor  to  conceal  the  hirlh  of  dead  child  under  the 
English  statute,{n) 

That  A.  C,  late  of,  etc.,  on,  etc.,  at,  etc.,  being  big  with  a  cer- 
tain female  child,  afterwards,  to  wit,  on  the  same  day,  and  in 
the  year  aforesaid,  in  the  parish  aforesaid,  in  the  county  afore- 
said, of  the  said  child  was  delivered. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  the  said  A.  C.  afterwards,  to  wit,  on  the  same 
day,  and  in  the  year  aforesaid,  with  force  and  arms,  at  the  par- 
ish aforesaid,  in  the  county  aforesaid,  with  both  her  hands, 
unlawfully  did  cast  and  throw  the  dead  body  of  the  said  child 
into  and  amongst  the  soil,  waters,  and  tilth  then  being  in  a  cer- 
tain privy  there,  and  did  thereby  then  and  there  unlawfully 
dispose  of  the  dead  body  of  the  said  child,  and  endeavor  to 
conceal  the  birth  thereof,  against,  etc.,  and  against,  etc. 

(m)  For  this  form  I  am  indebted  to  W.  W.  Kerr,   Esq.,  formerly  assistant 
district  attorney  in  Piiiladelpliia. 
(n)  E,.  V.  Coxhead,  1  C.  &  K.  623. 

214 


RAPE.  (186) 


CHAPTER  11. 

RAPE,  (a) 

(186)  General  form. 

(187)  For  carnally  knowing  and  abusing  a  woman  child  under  the  age  of 

ten  years.     Mass.  stat.  1852,  ch.  259,  §  2. 

(188)  Rape.     Upon  a  female   other  than   a  daughter  or  a  sister  of  the 

defendant,  under  Ohio  stat.  p.  48,  §  2. 

(189)  Rape.     Upon  a  daughter  or  sister  of  the  defendant,  under  Ohio  stat. 

p.  48,  §1._ 

(190)  Rape.     Abusing  female  child  with  her  consent,  under  Ohio  stat.  p.  48, 

§2. 
(190a)   Rape  under  Indiana  statute. 
(1906)    Another  form. 
(190f)  Procuring  defilement  under  English  statute. 

[For  assaults  with  intent  to  ravish,  see  253,  etc.] 

(186)  General  form. 

That  I.  S,,(6)  late  of  the  parish  of  B.,  in  the  county  of  M., 
laborer//?)  on  the  day  of  etc.,  with  force  and  arnis,((i) 

at  the  parish  aforesaid,  in  the  county  aforesaid,  in  and  upon  one 

(a)  See  Wh.  Cr.  L.  8th  ed.  §  550  et  seq. 

(b)  Two  defendants  may  be  joined  as  principals,  supra,  notes  to  form  97.  R. 
V.  Burgess,  1  Russ.  on  Cr.  687  ;  Strong  v.  People,  24  Mich.  1.  An  indictment 
charging,  in  one  count,  G.  as  principal  in  the  first  degree  and  W.  as  present 
aiding  and  abetting,  and  in  another  count  W.  as  principal  in  the  first  degree  and 
G.  as  aiding  and  abetting,  was  sustained  In  R.  v.  Gray,  7  C.  &  P.  164.  Wh.  Cr. 
L.  8th  ed.  §  5G9. 

A  general  conviction  of  defendant,  charged  both  as  principal  in  the  first  degree, 
and  as  an  aider  and  abettor  of  other  men  in  rape,  is  valid  on  tlie  count  charging 
him  as  principal.  And  on  such  an  indictment,  evidence  may  be  given  of  several 
rapes  on  the  same  woman,  at  the  same  time,  by  the  defendant  and  other  men, 
each  assisting  the  other  in  turn,  without  putting  the  prosecutor  to  elect  on  which 
count  to  proceed.     R.  v.  Folkes,  1  Mood.  C.  C.  344. 

An  Indictment  Is  good  which  charges  that  A.  committed  a  rape,  and  that  B. 
was  present  aiding  and  abetting  him  in  the  commission  of  tlie  felony  ;  for  the 
party  aiding  may  be  charged  either  as  he  was  in  law,  a  principal  In  the  first  de- 
gree, or  as  he  was  In  fact,  a  principal  in  the  second  degree.  R.  v.  Crisham,  C. 
&  M.  187. 

(c)  Age  need  not  be  stated,  so  as  to  exclude  impuberty.  Com.  v.  Sugland,  4 
Gray,  7  ;"  People  v.  Ah  Yek,  29  Cal.  575. 

(d)  These  words  are  surplusage.     Supra,  note  to  form  2,  p.  17. 

215 


(187)  OFFENCES     AGAINST    THE    PERSON. 

A.  '^.•(c)  in  the  peace  of  God  atul  the  said  state,  tlien  and  there 
being,  violently  and  feloniously  did  make  an  assault,(/)  and  hev 
the  said  A.  N.,  then  and  there  forcibly  and  against  her  will,(^) 
feloniously  did  ravish(/i)  and  carnally  knovv,(?:)  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.  Add  a  count  for  assaidt  and 
intent  to  ravish.){j) 

(187)  For  carnally  knowing  and  abusing  a  icoman  child  under  the 
age  of  ten  years.{k) 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.,  late  of  B., 
in  the  county  of  S.,  laborer,  on  the  first  day  of  June,  \\\  the  year 
of  our  Lord  with  force  and  arms,  at  B.  aforesaid,  in  the 

county  aforesaid,  in  and  upon  one  E.  F.,  a  woman  child,  under 
the  age  of  ten  years,  to  wit,  of  the  age  of  nine  years,  feloniously 
did  make  an  assault,  and  her  the  said  E.  F.  then  and  there  felo- 
niously did  unlawfully  and  carnally  know  and  abuse,  against 
the  peace  of  said  commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

(e)  It  is  not  necessary  to  aver  that  the  prosecutrix  was  a  -woman  (Com.  v.  Sulli- 
van, 6  Gray,  47  7  ;  Cora.  v.  Fogerty,  8  Gray,  489  ;  State  r.  Farmer,  4  Ired.  224) ; 
nor  need  her  age  be  given  (lb.;  Com.  i'.  Scannel,  11  Cush.  547;  State  t;.  Stor- 
key,  G3  N.  C.  7),  unless  the  object  be  to  prosecute  under  a  distinct  statute,  of 
which  age  is  the  ingredient,  as  is  the  case  with  statutes  making  peculiarly  penal 
offences  against  infant  children.  Infra,  190;  R.  i-.  Martin,  9  C.  &  F.  215.  As  to 
Ohio  statute,  see  O'Meara  v.  State,  17  Ohio  St.  515.  The  averment  of  age  may 
be  rejected  as  surplusage.     Mobley  v.  State,  46  Miss.  501. 

(/■)  An  indictment  charging  that  the  defendant  in  and  upon  A.  B.  "feloni- 
ously and  violently  did  make  (omitting  the  words  'an  assault'),  and  her  the  said 
A.  15.  then  and  there,  against  her  will,  violently  and  feloniously  did  ravish  and 
carnally  know,"  etc.,  was  held  sufficient  in  arrest  of  judgment.  R.  v.  Allen,  1 
Mood.'C.  C.  179  ;  9  C.  &P.  521  ;  O'Connell  v.  State,  6  Minn.  279.  There  can 
be  no  conviction  of  assault,  however,  on  such  an  indictment. 

((/)  Though  these  words  used  to  be  considered  essential  (Wli.  Cr.  PI.  &  Pr. 
§  263  ;  State  v.  Jim,  1  Dev.  142),  yet  it  has  been  held  that  the  clause  might  be 
supplied  by  "feloniously  did  ravish  and  carnallv  know  her."  Harman  v.  Com., 
12  S.  &  R.  69  ;  Com.  v.  Bennett,  2  Va.  Cases,' 235  ;   Wh.  Cr   L.  8th  ed.  §  573. 

[h)  "Ravish"  is  essential.  Gougleman  v.  People,  3  Park.  C.  R.  15;  Chris- 
tian V.  Com.,  23  Grat.  954  ;   Davis  v.  State,  42  Tex.  226. 

"Unlawfully"  may  be  dispensed  with.     Weinzorptlin  v.  State,  7  Blackf.  186. 

(i)  The  omission  of  the  '•  carnaliter  cognovif"  makes  the  indictment  bad  on 
demurrer,  but,  as  it  seems,  not  after  verdict,  under  the  late  English  statute  of  jeo- 
fails.    R.  ?'.  Warren,  1  Russ.  686. 

(j)  See  closing  notes  to  form  2,  p.  31,  as  to  the  propriety  of  such  a  joinder; 
and  see  also  Wh.  Cr.  L.  8th  ed.  §  570;   Wh.  Cr.  PI.  &  Pr.  §§  285-90. 

(k)  Tr.  &  H.  Free;  Mass.  St.  1852,  ch.  259,  §  2. 

216 


RAPE.  (190) 

(188)  Bape  apon  a  female  other  than  a  davghter  or  sister  of  the 

defendant^  under  Ohio  stat.  2?.  48,  §  2. 

That  A.  B.,  on  the  iifth  tlay  of  June,  in  the  year  of  our  Lord 
one  thousand  eio;ht  hundred  and  forty-nine,  in  the  county  of 
Cuyahoo;a  aforesaid,  in  and  upon  M.  N.,  then  and  there  being;, 
unlawfully,  violently,  and  feloniously  did  make  an  assault,  and 
her  the  said  M.  N.  then  and  there  forcibly  and  against  her  will, 
feloniously  did  ravish  and  carnally  know,  she  the  said  M.  N. 
then  and  there  not  being  the  daughter  or  sister  of  the  said  A.  B., 
contrary,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(189)  Rape  xqoon  a  daughter  or  sister  of  the  defendant,  under  Ohio 

Stat.  p.  48,  §  1. 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  in  the  county  of 

aforesaid,  in  and  upon  one  M.  IST.,  then  and  there  being,  unlaw- 
fully, violently,  and  feloniously  did  make  an  assault,  and  her 
the  said  M.  iN".,  then  and  there  forcibly  and  against  her  will, 
feloniously  did  ravish  and  carnally  know,  she  the  said  M.  K. 
then  and  there  being  the  daughter  (or  sister,  as  the  case  may  be) 
of  the  said  A.  B.,  and  the  said  A.  B.  then  and  there  well  know- 
ing the  said  M.  IS",  to  be  his  daughter  {or  sister),  contrary,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(190)  Rape.     Abusing  female  child  with  her  consent,  under  Ohio 

Stat.  p.  48,  §  2. 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  in  the  county  of 

aforesaid,  being  then  and  there  a  male  person  of  the  age  of 
seventeen  years  and  upward,  in  and  upon  one  M.  N.,  a  female 
chi]d,(^)  under  the  age  of  ten  years,  to  wit,  of  the  age  of  eight 
years,  then  and  there  being,  unlawfully,  forcibly,  and  feloniously 
did  make  an  assault,  and  her  the  said  M.  I^.  then  and  there  un- 
lawfully and  feloniously  did  carnally  know  and  abuse,  with  her 
consent,  contrary,  etc.     {Conclude  as  in  book  1,  chapter  3.)(m) 

(?)  That  this  is  required  under  statute   see  O'Meara  v.  State,  17  Oh,  St.  515. 
The  qualiOeation  may  be  rejected  as  surplusage.     Mobley  v.  State,  46  Miss.  501. 
(m)  Warren  C.  L.  68. 

217 


(190c)  OFFENCES   AGAINST    THE    PERSON. 

(190rt)  Rape  under  Indiana  statute. 

Indictment  for  rape,  alleging  that  the  defendant,  "  on,  etc., 
at,  etc.,  did  then  and  there,  in  and  upon  A.  V.,  a  woman,  forci- 
bly and  feloniously  make  an  assault ;  and  her  the  said  A.  Y., 
then  and  there,  unlawfully,  forcibly,  and  against  her  will,  felo- 
niously ravish  and  carnally  know,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  state  of,"  etc.(n) 

(1906)  Another  form. 

"The  grand  jury,  etc.,  on  their  oath  do  present  and  charge, 
that  A.  v.,  late  of  said  county,  on,  etc.,  at,  etc.,  did  then  and 
there  unlawfully,  in  and  upon  D.  W.,  a  woman,  forcibly  and 
feloniously  make  an  assault,  and  her,  the  said  D.  W.,  then  and 
there,  unlawfully,  forcibly,  and  against  her  will,  feloniously 
ravish  and  carnally  know,  contrary,"  etc.(o) 

(190c)  Procuring  defilement  of  girl  under  English  statute. 

That  I.  S.,  etc.,  on,  etc.,  at,  etc.,  by  falsely  pretending  and 
representing  unto  one  I.  N.  that  {here  set  out  the  false  pretences 
or  representations)  did  procure  I.  N.  to  have  illicit  carnal  con- 
nection with  a  certain  man,  named  {or  to  the  jurors 
aforesaid  unknown).^  she,  the  said  I.  i^.,  at  the  time  of  such  pro- 
curement, being  then  a  woman  under  the  age  of  twenty-one 
years,  to  wit,  of  the  age  of  ;  whereas,  in  truth  and  fact 
{negativing  the  pretences  or  representations)^  against,  etc.(2j) 

[n)  It  was  held  in  Indiana  that  this  indictment  was  not  bad  because  the  word 
"did"  was  not  repeated  before  the  words  "  ravish  and  carnally  know."  Whit- 
ney V.  State,  35  Ind.  503. 

(o)   Sustained  in  Vance  v.  State,  65  Ind.  460. 

{p)  Arch.  C.  P.  19th  ed.  p.  767. 
218 


SODOMY.  (191a) 


CHAPTER  III. 

SODOMY.(a) 

(191)  General  form. 

{191a)  Under  Pennsylvania  statute. 

(191)  General  foy^m. 

That  A.  B.,  on,  etc.,  at,  etc.,  in  and  upon  T.  L.,  then  and  there 
being,  felonious!}'  did  make  an  assault,  and  then  and  there  felo- 
niously, wickedly,  diabolically,  and  against  the  order  of  nature, 
had  a  venereal  affair  (6)  with  the  said  T.  L.,  and  then  and  there 
carnally  knew  the  said  T.  L.,  and  then  and  there  feloniously, 
wickedly,  and  diabolically,  and  against  the  order  of  nature,  with 
the  said  T.  L.  did  commit  and  perpetrate  that  detestable  and 
abominable  crime  of  buggery  (c)  (not  to  be  named  among  Chris- 
tians), to  the  great  displeasure  of  Almighty  God,  to  the  great 
scandal  of  all  human  kind,  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(191a)   Under  Pennsylvania  statute. 

That  A.  B.,  late  of  the  said  county  on  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
eighty-  at  the  county  aforesaid,  and  within  the  jurisdiction 

of  this  court,  with  force  and  arms,  etc.,  feloniously,  wilfully, 
wickedly,  and  against  the  order  of  nature,  did  have  a  certain 
venereal  affair  and  carnal  intercourse  and  copulation  with  and 
between  him  the  said  A.  B.  and  one  L.  R.,  and  then  and  there, 
feloniously,  wilfully,  wickedly,   indecently,  and    against    the 

(a)  Stark.  C.  P.  434.     See  Wh.  Cr.  L.  8th  ed.  §  579. 

(ft)  "Had  a  venereal  affair"  is  not  essential.  Lambertson  ?;.  People,  5  Par- 
ker, C.  C.  200. 

(c)  This  word  is  essential.  Co.  Ent.  .350  ;  Post.  424;  Wh.  Cr.  L.  8th  cd. 
?  580,  etc.  That  "commit  sodometical  practices"  Is  Insufficient,  soc  R.  v.  Rowed, 
2G.  &U.  518;  3  Q.  B.  180;  Davis  v.  Slate,  3  H.  &  J.  154.  That  specification 
is  required,  see  State  v.  Campbell,  29  Tex.  44.     For  letter  soliciting,  see  lOCOa. 

219 


(191a)  OFFENCES    AGAINST    THE    PERSON. 

order  of  nature,  did  insert  the  person  and  private  parts  of  him 
the  said  A.  B.  into  the  of  him   the  said  L.  R.  {or,  did 

suffer  and  permit  the  said  L.  R.  then  and  there  to  insert  the 
person  and  private  parts  of  him   the  said  L.  R,.  into  the 
of  him  the  said  A.  B.),  and  did  then  and  there,  in  manner  and 
form  aforesaid,  commit  the  crime  of  sodomy  and  buggery  with 
the  said  L.  R.,  contrary,  etc.{d) 

(d)  For  this  form   I  am   indebted  (1881)   to  Wm.  W.   Ker,   Esq.,  formerly 
assistant  district  attorney  of  Philadelphia. 

220 


MAYHEM.  (192) 


CHAPTER  IV. 

MAYHEM,  (a) 

(192)  Indictment  on  Coventry   Act,  22  and  23  Car.  II.  c.  1,  for  felony,  by 

slitting  a  nose,  and  against  the  aider  and  abettor. 

(193)  Mayhem  by  slitting  the  nose,  under  the  Rev.  Stat.  Massachusetts,  ch. 

125,  §  10. 

(194)  Mayhem  by  cutting  out  one  of  the  testicles,  under  the  Pennsylvania 

statute. 

(195)  Against  principal  in  first  and  second  degree  for  mayhem  in  biting  off  an 

ear,  under  the  statute  of  Alabama. 
(19G)  Biting  off  an  ear,  under  Rev.  Stat.  N.  C.  ch.  34,  §  48. 
(197)  Maliciously  breaking  prosecutor's  arm  with  intent  to  maim  him,  under 

the  Alabama  statute. 

(192)  Indictment  on  Coventry  Act,  22  and  23  Car.  II.  ch.  1,  for  fel- 
ony^ by  slitting  a  nose,  and  against  the  aider  and  abettor.{b) 

That  J.  W.,  late  of,  etc.,  laborer,  and  A.  C,  late  of,  etc.,  Esq., 
on,  etc.,  contriving  and  intending  one  E.  C.  to  maim  and  disfig- 
ure,(c)  at,  etc.,  with  force  and  arms,  in  and  upon  the  said  E.  C, 
in  the  peace  of  God  and  the  said  state,  then  and  there  being,  on 
purpose,((i)  and  on  {or  "of  their")  malice  aforethought,(ri)  and  by- 
lying  in  wait,  unlawfully  and  feloniously(e)  did  make  an  assault, 
and  the  said  J.  W.,  with  a  certain  iron  bill  of  tiie  value  of  one 
penny,  which  he  the  said  J.  W.  in  his  right  hand  then  and  there 
had  and  held,(/)  the  nose  of  the  said  E.  C,  on  purpose,  and  of 
his  malice  aforethought,  and  by  lying  in  wait,  then  and  there 

(a)   See  Wh.  Cr.  L.  8th  ed.  §  581. 

(6)  Chit.  C.  L.  vol.  3,  786.  Though  mayhem  is  still  an  offence  at  common 
law,  and  as  such  is  the  subject  of  prosecutions  in  England,  there  are  fe-w  prece- 
dents of  indictments  for  it  as  a  common  law  offence.  This  form  was  taken  by 
Mr.  Chitty  (3  C.  L.  786)  from  the  Cro.  C.  C.  264.  In  most  of  our  states,  how- 
ever, so  far  as  the  ground  is  unoccupied  by  statute,  the  common  law  remedy 
remains,  and  mayhem  may  still  be  treated  as  a  common  law  olfence. 

(c)  The  intent  as  thus  laid  is  necessary.      1  East,  P.  C.  402. 

(d)  The  omission  of  these  words  would  be  unsafe.  1  East,  P.  C.  402;  Penn. 
V.  M'Birnie,  Add.  R.  28. 

(e)  This  is  requisite.  Hawk.  b.  2,  c  23,  s.  18;  Chit.  C.  L.  786,  787.  See 
infra,  note  (r/) . 

(/)  The  same  precision  is  necessary  as  in  murder.     Hawk.  b.  2,  c.  23,  s.  79. 

221 


(183)  OFFENCES    AGAINST    THE    PERSON. 

unlawfully  and  feloniously (^)  did  8lit,(A)  with  intention  the  said 
E.  C,  in  so  doing,  in  manner  aforesaid,  to  maim  and  disfigure ;(i) 
and  that  the. aforesaid  A.  C  ,  at  the  time  the  aforesaid  felony  by 
the  said  J.  W.,  in  manner  and  form  aforesaid,  was  done  and 
committed,  to  wit,  on  the  said,  etc.,  at,  etc.,  with  force  and  arms, 
on  purpose,  and  of  his  malice  aforethought,  and  by  lying  in  wait, 
unlawfully  and  feloniously  was  present  {knowing  of  and  yrivy  to 
the  said  felony)^{j)  aiding  and  abetting  the  said  J.  W.  in  the 
felony  aforesaid,  in  manner  and  form  aforesaid  done  and  com- 
mitted. And  so  the  jurors,  etc  ,  do  say,(/t)  that  the  said  J.  W. 
and  A.  C,  on  the  said,  etc.,  at,  etc.,  aforesaid,  with  force  and 
arms,  on  purpose,  and  of  their  malice  aforethought,  and  by  lying 
in  wait,  the  felony  aforesaid,  in  form  aforesaid,  unlawfully  and 
feloniously  did  do  and  commit,  and  each  of  them  did  do  and 
commit,  against,  etc.,  and  against,  etc. 

(193)  Mayhem  by  slitting  the  nose,  under  Rev.  Stat.  Mass.  eh.  125, 

§  10. 

That  C.  D.,  late  of  B.  in  the  county  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  with  force  and  arms, 

at  B.  aforesaid,  in  the  county  aforesaid,  the  said  C.  D.  being 
then  and  there  armed  with  a  certain  dangerous  weapon,  to  wit, 
a  knife,  with  malicious  intent  the  said  J.  N.  then  and  there  to 

(_9)  In  England,  3  Chit.  C.  L.  786,  and  in  Pennsylvania,  the  practice  is  to 
charge  the  otlience  as  a  felony  ;  but  in  Massachusetts,  Georgia,  and  Alabama,  it 
is  treated  as  a  misdemeanor.     See  Wh.  Cr.  L.  8th  ed.  §  583,  for  authorities. 

"Every  indictment  for  maiming,"  says  Mr.  Chitty  (3  C.  L.  787),  "though  at 
common  hiAv,  must  charge  the  offence  to  have  been  done  feloniously,  because  the 
defendant  was  formerly  punished  with  loss  of  member."  Hawk.  b.  2,  c.  23,  s. 
18.  The  term  mahtimacit  was  always  essential  formerly,  as  the  word  maim  is  at 
present.  lb.  s.  17;  Com.  v.  Newell,  7  Mass.  245.  The  wound  should  be  set 
forth  with  the  same  degree  of  precision  as  in  cases  of  murder ;  and  a  similar  con- 
clusion must  be  drawn,  that  so  the  defendant  i\l(ifelolno^^sllJ  maim,  etc.,  though 
this  will  not  supply  the  omission  of  either  of  these  words  in  the  previous  descrip- 
tion of  the  violence.  1  East,  P.  C.  402.  In  case  of  indictment  on  the  statute  of 
Charles,  its  language  must  be  accurately  followed ;  so  that  the  expressions  on 
imrpose,  of  malice  aforethourjht,  and  by  lying  in  wait,  as  well  as  tlie  allegation 
that  the  act  was  done  tcith  intent  to  maim  and  disfgure,  are  material.  lb.  ; 
Penn.  v.  M'Birnie,  Add.  R.  28. 

(A)  The  wound  should  be  laid  with  the  same  precision  as  in  murder.  3  Chit. 
C.  L.  786. 

(t)  In  New  York  the  indictment  must  aver  a  premeditated  design.  Tully  v. 
People,  67  N.  Y,  15. 

(y)  The  words  of  the  statute. 

(it)  This  conclusion  is  necessary.     1  East,  P.  C.  402;  3  Chit.  C.  L.  786,  787. 

222 


MAYHEM.  (194) 

maim  and  disfigure,  in  and  upon  the  said  J.  N.  feloniously  did 
make  an  assault;  and  that  the  said  C.  D.,  with  the  said  knife, 
the  nose  of  the  said  J.  N.  then  and  there  feloniously  and  ma- 
liciously did  cut  and  slit,  with  malicious  intent  then  and  there 
and  thereb}-,  in  manner  aforesaid,  the  said  J.  N.  then  and  there, 
to  maim  and  disfigure;  against,  etc.,  and  contrary,  etc.(^)  {Con- 
dude  as  in  book  1,  ch.  3.) 

(194)  Mayhem  by  cutting  out  one  of  the  testicles^  under  the 
Pennsylvania  statute.{m) 
That  negro  T.,  late  of  the  said  county,  yeoman,  on  the  second 
day  of  May,  A.  D.  one  thousand  eight  hundred  and  six,  at  the 
county  aforesaid,  and  within  the  jurisdiction  of  this  court,  con- 
triving and  intending  one  T.  W.  to  maim  and  disfigure,  with 
force  and  arms,  in  and  upon  the  said  T.  W.,  in  the  peace  of  God 
and  the  commonwealth,  then  and  there  being,  feloniously,  volun- 
tarily, and  maliciously  did  make  an  assault;  and  the  said  negro 
T.,  with  a  certain  knife  of  the  value  of  ten  cents,  which  he  the 
said  negro  T.  in  his  right  hand  then  and  there  had  and  held, 
on  purpose,  and  of  his  malice  aforethought,  then  and  there, 
unlawfully,  voluntarily,  maliciously,  and  feloniously  did  cut  out, 
mutilate,  and  destroy  one  of  the  testicles,  to  wit,  the  left  testi- 
cle of  him  the  said  T.  W.,  with  intention  him  the  said  T.  W., 
in  so  doing,  in  manner  aforesaid,  to  maim  and  disfigure;  and 
so  the  jurors  aforesaid,  upon  their  oaths,  etc.,  aforesaid,  do  say, 
that  the  said  negro  T.,  on  the  said  day  of  in  the 

year  aforesaid,  at  the  county  aforesaid,  with  force  and  arms, 
on  purpose,  and  of  his  malice  aforethought,  the  otience  afore- 
said in  manner  and  form  aforesaid,  did  do  and  conmiit,  con- 
trary, etc.,  and  against,  etc.(n) 

{I)  Tr.  &  H.  Free.  385.     See  Com.  n.  Newell,  7  Mass.  245. 

(m)  The  det'endant  was  convicted  in  180G,  under  this  indictment,  in  the  Phila- 
delphia quarter  sessions. 

(n)  In  an  early  indictment  in  Pennsylvania  (Resp.  v.  Langcake,  1  Yeatcs, 
415),  the  first  count  stated,  that  Langcake,  contriving  and  intending  Jonathan 
Carmalt,  a  citizen  of  Pennsylvania,  to  maim  and  disfigure,  with  force  and  arms, 
etc.,  on  purpose  and  of  his  malice  aforethought,  and  by  lying  in  toaif,  on  tiie 
13th  August,  1794,  at,  etc.,  unlawfully  and  feloniously  did  make  an  assault  on 
the  said  Jonathan  with  a  cart-wliip,  of  the  value  of  Is.,  and  the  right  eye  of  the 
said  Jonathan  then  and  tliere  did  strike  and  ])ut  out,  with  an  intent  in  so  doing 
to  maim  and  disfigure  him,  against  tlie  act  of  assembly,  etc.,  and  that  Hook  was 
then  and  there  present,  aiding  and  abetting  tlie  fact,  etc.,  against  tlie  act,  etc. 

The  second  count  was  grounded  on  the  latter  part  of  the  Gth  section  of  the 

223 


(195) 


OFFENCES    AGAINST    THE    PERSON. 


(195)  Against  principal  in  Jirsi  and  second  degree  for  mayhem  in 
biting  off  an  ear  under  the  statute  of  Alabama.{o) 

That  W.  M.,  on,  etc.,  at,  etc.,  in  and  upon  one  W.  E.  W".,  in 
the  peace  of  the  said  state,  then  and  there  being,  did  make  an 

act  of  22d  April,  1794  (p.  GOl),  and  pursued  the  words  of  the  first  count,  leav- 
ing out  the  words  "  and  by  lying  in  wait,"  and  charging  tlie  fact  to  have  been 
done  "voluntarily  and  maliciously,  and  of  purpose,"  both  against  tiie  principal 
and  accessary. 

The  third  count  stated,  that  Langcake  and  Hook,  contriving  to  maim  and 
disfigure  Jonathan  Carmalt,  in  the  peace  of  God  and  of  the  commonwealth 
then  and  there  being,  the  said  Langcake  on  the  13th  August,  1794,  at,  etc., 
voluntarily,  wickedly,  maliciously,  unlawfully,  and  feloniously,  did  assault  the 
said  Jonatlian,  and  liim  with  a  cart-whip,  which  he  in  his  right  hand  had 
and  held,  the  right  eye  of  the  said  Jonathan,  then  and  there  voluntarily,  etc., 
did  strike  and  ])ut  out,  with  intent  in  so  doing  to  maim  and  disfigure  him,  and 
that  Hook,  at  the  time  of  the  felony  by  Langcake  done  and  committed,  vol- 
untarily, etc.,  was  present  aiding  and  abetting  Langcake  in  the  felony  aforesaid, 
etc.,  concluding  as  in  mayhem  at  common  law,  against  the  peace,  etc. 

"  The  first  clause  of  our  act  of  assembly  of  22d  April,  1784,  s.  6,  is  borrowed 
from  the  words  of  the  British  statute  of  22  and  23  Car.  II.  c.  1,  s.  7.  It  pur- 
sues the  same  language,  except  that  our  act  particularly  enumerates  the  cutting 
ott"  'the  ear,'  and  mildly  varies  the  mode  of  punishment.  Under  that  statute, 
commonly  called  the  Coventry  Act,  it  has  been  adjudged  not  necessary  that 
either  the  malice  ai'orethought,  or  lying  in  wait,  should  be  expressly  proved  to 
be  on  purpose  to  maim  or  disfigure.  Leach's  case,  193.  And  also  that  he  who 
intends  to  do  this  kind  of  mischief  to  another,  and^  hij  deliberately  icatching  an 
opportunity^  carries  that  intention  into  execution,  may  be  said  to  Lie  in  wait  on 
pu)-pose.     lb.  194;   Mills'  case. 

"Under  the  first  clause  of  the  act  of  assembly,  no  intent  to  maim  or  disfigure 
in  3,  particular  manner  is  necessary,  and  therefore  on  the  first  count  in  the  indict- 
ment, if  the  general  intent  is  established  to  the  satisfaction  of  the  jury,  their  next 
material  incpiiries  will  be,  as  to  the  malice  and  lying  in  wait,  whetlier  the  same 
has  been  proved,  or  can  fairly  be  inferred  from  all  the  circumstances  which  have 
been  disclosed  in  evidence. 

"The  second  clause  of  the  6th  section  of  the  act  goes  further  than  the  Cov- 
entry Act,  and  was  evidently  introduced  to  prevent  the  infamous  jjractice  of 
gouging.  The  words  are  very  com])rehensive,  and  extend  to  pulling  out  or  put- 
ting out  the  eye,  while  fighting  or  otherwise.  But  we  hold  it  necessary,  in  order 
to  convict  on  this  clause,  tliat  a  specific  intent  to  pull  out  or  put  out  the  eye 
must  be  shown  to  the  satisfaction  ot  the  jury.  We  apprehend  that  the  evidence 
will  scarcely  warrant  the  conviction  of  Langcake  on  the  second  count;  and 
though  Hook  has  behaved  himself  grossly  amiss  during  the  whole  transaction,  yet 
he  cannot  properly  be  convicted  on  either  of  the  two  first  counts  in  the  indictment. 

"  On  the  third  and  fourth  counts,  Langcake  is  admitted  by  his  counsel  to  be 
guilty,  and  perliaps  the  evidence  will  suffice  to  reach  Hook  on  these  two  last 
counts." 

Sentence  was  afterwards  pronounced  against  Langcake,  that  he  should  un- 
dergo a  confinement  in  the  jail  and  penitentiary  house  for  tin-ee  years,  the  one- 
twelfth  part  to  be  in  the  solitary  cells ;  to  pay  a  fine  of  §1000,  whereof  three- 
fourth  parts  to  be  for  the  use  of  Carmalt ;  and  give  security  for  his  good  beha- 
vior for  seven  years,  himself  in  £500,  and  two  sufficient  sureties  in  £250  each, 
and  pay  costs. 

(o)  State  V.  Absence,  4  Port.  397.  The  court  said:  "  The  indictment  seems 
to  be  in  the  form  pointed  out  by  the  most  usual  and  correct  i)recedents,  aTul  con- 


MAYHEM.  (196) 

assault,  and  that  the  said  "W.  M.,  the  right  ear  of  him  the  said 
"W.  E.  "W.,  then  and  there  on  purpose,  and  of  his  malice  afore- 
thought, unlawfully  did  bite  off.  And  the  jurors  aforesaid 
upon  their  oaths  aforesaid,  do  further  present,  that  E.  A.,  late 
of  the  county  aforesaid,  in  the  county  aforesaid,  etc.,  with  force 
and  arms,  on  the  day  and  year  aforesaid,  unlawfully,  and  on 
purpose,  and  of  his  malice  aforethought,  was  present,  aiding 
and  abetting  and  assisting  the  said  W.  M.  the  said  mayhem  to 
do  and  commit,  contrary,  etc.,  and  against,  etc. 

(196)  Biting  off  an  ear,  under  Bev.  Stat.  N.  C.  ch.  34,  §  48.(/)) 

That  defendant,  on,  etc.,  at,  etc.,  unlawfully,  and  on  purpose, 
did  bite  off  the  left  ear  of  one  J.  W.,  contrary,  etc. 

tains  only  one  count,  which  charges  Mosely  with  committing  the  act,  and  Absence 
with  being  present,  and  aiding  and  assisting. 

"  It  is  objected,  however,  that  the  statute  having  declared  the  biting  off  of  an 
ear  to  be  mayhem,  it  was  necessary  to  charge  the  individuals  indicted  with  this 
legal  conclusion.  Hawk.  vol.  1,  p.  107,  and  2  Hawk.  311,  are  relied  on  to  es- 
tablish this  position. 

"It  is  admitted,  if  a  statute  adopt  a  common  law  offence  without  otherwise 
defining  the  crime,  all  the  common  law  requirements  should  be  followed  in  the 
indictment ;  thus  our  statutes  affix  the  punislmaent  of  death  to  murder  and  rape, 
without  attempting  to  define  the  crimes.  Here,  no  doubt,  the  terms  '  murdraviV 
and  '  rapuiV  would  be  essential ;  but  when  a  statute  describes  a  particular  act 
or  acts  as  a  misdemeanor  or  crime  of  a  particular  grade,  it  is  not  necessary  in 
an  indictment,  after  charging  the  acts,  to  state  the  legal  conclusion,  that  they 
amount  to  the  misdemeanor  or  crime  of  the  grade  declared  by  statute,  because 
such  is  the  conclusion  of  the  Imo  on  the  facts  alleged.  The  same  reason  is  con- 
ceived applicable  to  the  omission  of  the  word  '  feloniously.'  If  the  statute  had 
declared,  that  all  persons  who  should  be  guilty  of  the  crime  of  mayhem,  should 
be  punished  in  a  particular  manner,  without  attempting  to  further  define  the 
offence,  the  question  would  properly  arise  on  an  indictment  framed  under  such 
a  statute,  whether  it  was  necessary  to  allege  the  mayhem  to  have  been  done  felo- 
niously. 

"It  is  sufficient  to  decide,  that  the  word  entering  into  no  part  of  the  defi- 
nition of  this  offence,  as  created  by  the  statute,  it  was  properly  omitted  in  the 
indictment. 

"  It  is  further  urged,  that  there  is  no  sufficient  allegation  of  time  and  place,  so 
far  as  Absence  is  noticed  in  the  indictment. 

"The  court  recognizes  the  authority  of  the  rule  requiring  an  averment  of 
time  and  place  to  each  substantive  fact  charged  in  the  indictment.  Arch.  C.  P. 
36.  But  the  indictment,  it  is  believed,  conforms  to  this  rule  with  the  utmost 
precision. 

"  It  follows,  as  the  consequence  of  these  views,  that  there  was  no  error  in  re- 
fusing to  arrest  the  judgment  in  the  court  below." 

(jo)  State  V.  Girkin,  1  Ire.  121.  Under  this  indictment  it  was  held,  that  an 
intent  to  disfigure  is  prima  facie  to  be  inferred  from  an  act  which  does  in  fact 
disfigure,  unless  that  presumption  be  repelled  by  evidence  on  the  part  of  the  ac- 
cused of  a  different  intent,  or  at  least  of  the  absence  of  the  intent  mentioned  in 
the  statute.  It  is  not  necessary,  it  was  said,  in  an  indictment  under  this  statute, 
to  prove  malice  aforethought,  or  a  preconceived  intention  to  commit  the  maim. 

VOL.  I. — 15  225 


(197)  OFFENCES   AGAINST   THE   PERSON. 

(197)  Maliciously  breaking  prosecutor^s  arm  with  intent  to  maim 
him,  under  the  Alabama  statute.{q) 

That  the  defendant,  with  force  and  arms,  in  and  upon  one  P. 
J.,  did  make  an  assault,  and  upon  the  left  arm  of  him  the  said 
P.  J.,  with  a  certain  stick,  which  he  the  said  defendant  then 
and  there  held  in  both  his  hands,  did  strike  and  break,  and  did 
on  purpose  and  of  malice  aforethought,  unlawfully  disable  the 
said  left  arm  of  him  the  said  P.  J.,  with  intent  him  the  said  P. 
J.  then  and  there  to  maim,  contrary,  etc.,  and  against,  etc.(r) 

To  constitute  a  maim  under  this  statute,  by  biting  off  an  ear,  it  is  not  necessary 
that  the  whole  ear  should  be  bitten  off ;  it  is  sufficient  if  a  part  only  is  taken  off, 
provided  enough  is  taken  off  to  alter  and  impair  the  natural  personal  appearance, 
and  to  ordinary  observation  to  render  the  person  less  comely. 

(17)  See  State  i\  Bailey,  8  Port.  472,  where  it  was  held,  that  where  the  act  of 
eighteen  hundred  and  seven  (Aik.  Dig.  102)  speaks  of  disabling  a  limb  or  mem- 
ber, a  permanent  injury  is  contemplated,  such  as  at  common  law  would  constitute 
mayhem  ;  a  temporary  disabling  of  a  finger,  an  arm,  or  an  eye,  is  not  sufficient 
to  constitute  the  statutory  offi^nce. 

(?•)  A  demurrer  was  filed  to  the  indictment,  which  was  overruled,  and  upon  a 
plea  of  "  not  guilty"  the  defendant  was  convicted,  and  the  sufficiency  of  the 
indictment  was  reserved  by  the  court  below  for  review. 

226 


ABDUCTION — KIDNAPPING.  (200a) 


CHAPTER  V. 
ABDUCTION— KIDNAPPING,  (a) 

(200)  Abduction  under  New  York  Rev.  Stat.  vol.  2,  p.  553,  §  25. 
(200a)  Under  English  statute. 

(201)  Abduction  of  a  white  person,  under  Ohio  stat.  p.  51,  §  14. 

(202)  Attempt  to  carry  a  white  person  out  of  the  state,  under  Ohio  stat.  p. 

51,  ?  14. 

(203)  Kidnapping.     Attempt  to  carry  off  a  black  person,  under  Ohio  stat. 

p.  51,  §  15. 
(203a)  Abduction  of  child,  under  Pennsylvania  statute. 

(200)  Abduction  under  New  York  Rev.  Stat.  vol.  2,  jp.  553,  §  25. 

That  T.  M.,  late  of  the  First  Ward  of  the  city  of  ITew  York, 
in  the  county  of  !N"ew  York  aforesaid,  laborer,  on,  etc.,  at  the 
ward,  city,  and  county  aforesaid,  with  force  and  arms,  in  and 
upon  one  J.  T.,  in  the  peace  of  God  and  of  the  said  people,  then 
and  there  being,  feloniously  did  make  an  assault,  and  her  the 
said  J.  T.  then  and  there  feloniously  did  take  against  her  will,(^) 
with  the  intent  to  compel  her  by  force,  menace,  and  duress  to 
be  defiled,  and  other  wrongs  to  the  said  J.  T.  then  and  there  did, 
to  the  great  damage  of  the  said  J.  T.,  against,  etc.,  and  con- 
trary, etc. 

(200a)  Abduction  of  woman  on  account  of  her  fortune.,  under 
English  statute. 

That  J.  S.,  on,  etc.,  at,  etc.,  feloniously,  and  from  motives  of 
lucre,  did  take  away  and  detain  one  A.  l!^.,  against  her  will,  she, 
the  said  A.  N.,  then  having  a  certain  present  and  absolute  inte- 
rest (or  conditional,  or  contingent,  or  future)  in  certain  real  estate 
{or  personal  estate),  with  intent  her,  the  said  A.  N.,  to  marry, 
against,  etc.(c) 

(a)  See  Wh.  Cr.  L.  8th  ed.  §§  586  et  seq. 

(5)  This  is  essential.     Click  i'.  State,  3  Tex.  282. 

(c)  Arch.  C.  P.  19th  ed.  757. 

227 


(203)  OFFENCES   AGAINST    THE    PERSON. 

(201)  Ahduciion  of  a  white  person,  under  Ohio  stat.  p.  51,  §  14.(<:f) 

That  A.  B.,  C.  D.,  and  E.  F.,  on  the  twenty-second  day  of  May, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty- 
four,  in  the  county  of  Hamilton  aforesaid,  one  M.  N.,  a  white 
person,  then  and  there  being,  did  unlawfully,  fraudulently,  and 
wickedly,  and  without  any  lawful  warrant  or  authority  what- 
ever, then  and  there  seize,  take,  steal,  and  kidnap,  and  him  the 
said  M.  N".  then  and  there  did  forcibly',  fraudulently,  and  against 
his  will,  and  without  his  consent,  carry  off  out  of  this  state, 
contrary,  etc.     (Conclude  as  in  book  1,  chapter  1.) 

(202)  Attempt  to  carry  a  white  person  out  of  the  state^  under  Ohio 

Stat.  p.  51,  §  14.(e) 

That  A.  B.,  C.  D.,  and  E.  F.,  on  the  twenty-second  day  of 
May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-four,  in  the  county  of  Hamilton  aforesaid,  one  M.  N".,  a 
white  person,  then  and  there  being,  did  forcibly,  fraudulently, 
and  wickedly,  and  not  in  pursuance  of  any  law  of  this  state, 
ari'est  and  imprison,  with  an  intention  then  and  there  of  having 
him  the  said  M.  N.  carried  out  of  this  state  without  the  consent 
of  him  the  said  M.  N.,  and  against  his  will.  {Conclude  as  in 
book  1,  chapter  1.) 

(203)  Kidnapping — Attempt  to  carry  off  a  black  person.,  under 

Ohio  stat.  p.  51,  §  15.(/) 

That  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  and  K  L.,  late  of  said 
county,  heretofore,  to  wat,  on  the  twenty-seventh  day  of  March, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
six,  at  the  county  of  Franklin  aforesaid,  under  the  pretence 
that  M.  N.,  a  free  black  person,  then  and  there  being,  was  then 
and  there  a  slave,  did  with  force  and  arms  and  by  violence, 
fraud,  and  deception,  seize  upon  the  said  M.  IST.,  a  free  black 
person,  then  and  there  being,  and  did  then  and  there  keep  the 
said  M.  ]^.,a  free  black  person  as  aforesaid,  in  restraint  and  con- 
finement for  a  long  space  of  time,  to  wit,  three  hours,  with 
intent  to  transport  him  the  said  M.  N.  out  of  the  State  of  Ohio, 
contrary,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

{d)  Warren's  C.  L.  70.  (e)  Warren's  C.  L.  70. 

(/)  AVarren's  C.  L.  70. 

228 


ABDUCTION — KIDNAPPING.  (203a) 

(203a)  Abduction  of  child  under  Pennsylvania  statute. 

That  heretofore,  to  wit,  on  the  first  day  of  July,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  seventy-four,  at 
the  county  aforesaid,  and  within  the  jurisdiction  of  this  court, 
with  force  and  arms,  etc.,  Charles  Brewster  Ross  was  then  and 
there  a  minor  child,  under  the  age  of  six  years ;  and  he  the  said 
Charles  Brewster  Ross  was  then  and  there  in  the  lawful  charge, 
care,  and  possession  of  his  parents,  Christian  K.  Ross,  and  Sarah 
Ann  Ross,  she  the  said  Sarah  Ann  Ross  then  and  there  being 
the  lawfully  wedded  wife  of  the  aforesaid  Christian  K.  Ross, 
and  they  the  said  Christian  K.  Ross  and  Sarah  Ann  Ross 
then  and  there  lived  and  cohabited  together  as  husband  and 
wife,  as  aforesaid ;  and  he  the  said  Charles  Brewster  Ross  was 
then  and  there  the  lawful  child  and  issue  of  them  the  said 
Christian  K.  Ross  and  Sarah  Ann  Ross  his  wife  as  aforesaid. 

And  the  grand  inquest  aforesaid,  upon  their  oaths  and  affir- 
mations aforesaid,  do  further  present,  that  William  Westervelt, 
late  of  the  said  county,  yeoman,  and  Mary  Westervelt,  late  of 
the  said  county,  matron,  and  William  Mosher,  late  of  the  said 
county,  yeoman,  alias  William  Henderson,  and  Joseph  Doug- 
lass, late  of  the  said  county,  yeoman,  alias  Joseph  Clark,  after- 
wards, to  wit,  on  the  said  first  day  of  July,  in  the  year  afore- 
said, at  the  county  aforesaid,  and  within  the  jurisdiction  of  this 
court,  with  forceand arms, etc.,  unlawfully, fraudulently,  wilfully, 
and  maliciously,  did  decoy,  entice,  lead,  take,  and  carry  away  the 
said  Charles  Brewster  Ross,  out  of  and  from  the  lawful  charge, 
care,  and  possession  of  the  said  Christian  K.  Ross  and  Sarah 
Ann  Ross  his  wife  as  aforesaid,  and  him  the  said  Charles 
Brewster  Ross,  from  his  said  parents  did  then  and  there  unlaw- 
fully, fraudulently,  wilfully,  and  maliciously  conceal  and  detain, 
with  intent  thereby,  then  and  there  unlawfully,  fraudulently, 
wilfully,  and  maliciously  to  deprive  the  said  Christian  K.  Ross 
and  Sarah  Ann  Ross  of  their  lawful  charge,  care,  and  possession 
of  the  said  Charles  Brewster  Ross  as  aforesaid,  contrary,  etc.(^) 

[g)  This  is  the  first  count  of  the  indictment  in  Westervelt's  case,  Phil.  1875,  the 
child  abducted  being  "Charlie  Ross."  Several  counts  for  conspiracy  followed. 
The  defendants  were  found  guilty  on  a  general  verdict.     32  Legal  Intel.  346. 

The  punishment  for  conspiracy  was  two  years'  imprisonment ;  the  punishment 
for  abduction  was  seven  years.  The  court  sentenced  the  defendant  to  seven 
years'  imprisonment.  The  Supreme  Court  refused  an  allocatur,  holding  that  the 
sentence  was  proper. 

229 


(204)  OFFENCES    AGAINST    THE    PERSON. 


CHAPTER  VI. 

ABORTION,  (a) 

(204)  Production  of  abortion  at  common  law.     First  count.     By  assault 

and  thrusting  an  instrument  in  the  prosecutrix's  womb,  she  being 
"big,  quick,  and  pregnant." 

(205)  Second  count,  averring  prosecutrix  to  be  "big   and  preg- 

nant." 

(206)  Third  count,  merely  averring  pregnancy  in  same. 

(207)  Assault  on  a  woman  with  quick  child,  so  that  the  child  was  brought 

forth  dead.     (At  common  law.) 

(208)  Against  A.  the  principal,  for  producing  an  abortion  by  using  an  in- 

strument on  the  person  of  a  third  party,  and  B.  an  accessary  before 
the  fact,  under  the  English  statute. 

(209)  Administering  a  potion  at  common  law  with  the  intent  to  produce 

abortion. 

(210)  Producing  abortion  in  New  York,  2  R.  S.  550,  551,  §  9,  2d  ed, 
(210a)   Same  in  Massachusetts. 

(2106)  Another  form. 

(210c)  Against  accessary  before  the  fact  with  unknown  principal. 

(210d)  Form  used  in  Philadelphia  in  1880. 

(210e)  Same  averring  death. 

(211)  Administering  medicine  under  the  Indiana  statute,  with  intent  to 

produce  abortion. 

(212)  Attempt  to  procure  abortion  by  administering  a  drug,  under  Ohio 

statute. 

(204)  Production  of  abortion  at  common  law.ib) 

First  count.    By  assault  and  thrusting  an  instrument  in  the  prose- 
cutrix's womby  she  being  "  big,  quick,  and  pregnant." 

That  W.  B.  T.,  late  of  the  said  county,  yeoman,  A.  D.,  alias 

(a)  See  Wh.  C.  L.  8th  ed.  §  592. 

That  the  indictments,  when  the  offence  is  statutory,  must  conform  to  the 
statute,  see  U.  S.  v.  May,  2  McArthur,  512;  Com.  v.  Snow,  116  Mass.  47; 
Com.  V.  Brown,  121  Mass.  69;  State  v.  Owens,  22  Minn.  238;  State  v.  Mc- 
Intyre,  19  Minn.  93  ;  Willey  v.  State,  52  Ind.  246.  As  to  New  York  statute, 
see  People  v.  Lohman,  2  Barb.  216;  1  Comst.  379;  People  v.  Stockham,  1 
Park.  C.  R.  424 ;  Davis  v.  People,  2  Th.  &  C.  212  ;  Mongeon  v.  People,  54  N. 
Y.  613.     As  to  Wisconsin,  see  State  v.  Dickinson,  41  Wis.  299. 

(6)  This  indictment  was  sustained  in  Com.  v.  Demain,  6  Penn.  L.  J.  29  ; 
Brightly  R,  441. 

230 


ABORTION.  (205) 

A.  F.,  late  of  the  said  county,  single  woman,  and  —  F.,  late  of 
the  said  county,  yeoman,  on,  etc.,  with  force  and  arms,  etc.,  at 
the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  in  and  upon  one  S.  R.  S.,  then  and  there  being  big,  preg- 
nant, and  quick  with  child,  did  make  a  violent  assault,  and  her 
the  said  S.  then  and  there  did  violently  bruise,  wound,  and  ill- 
treat,  80  that  her  life  was  thereby  despaired  of;  and  a  certain 
instrument,  made  of  silver  or  other  metal,  in  the  shape  and 
form  of  a  hook,  up  and  into  the  womb  and  body  of  the  said  S., 
then  and  there  violently,  wickedly,  and  inhumanly  did  force 
and  thrust,  with  a  wicked  intent,  to  cause  and  procure (c)  the 
said  S.  R.  S.  to  miscarry,  abort,  and  to  bring  forth  the  said  child, 
of  which  she  was  big,  quick,  and  pregnant,  as  aforesaid,  dead, 
and  to  kill  and  murder  the  said  child,  by  reason  and  means  of 
which  said  last  mentioned  premises,  the  said  child  was  killed 
and  its  life  destroyed  and  taken  away  in  its  mother's  womb ; 
and  she,  the  said  S.,  afterwards,  to  wit,  on,  etc.,  miscarried  and 
was  aborted  and  delivered  of  the  said  child,  being  a  female 
child,  and  being  at  the  time  of  its  birth  dead,  to  the  great  injury 
and  detriment  of  the  said  S.,  to  the  evil  example  of  all  others 
in  like  manner  offending,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(205)  Second  count,  averring  prosecutrix  to  be  ^'•big  and  j^regnant." 

That  the  said  W.  B.  T.,  A.  D.  alias  A.  F.,  and  —  F.,  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at  the  county 

In  the  Supreme  Court  judgment  on  demurrer  was  entered  for  the  common- 
wealth, Sergeant,  J.,  delivering  the  following  opinion: — 

"We  see  nothing  in  any  of  the  points  taken  by  the  defendants  in  demurrer. 

"1.  This  exception  is  only  pleadable  in  abatement,  in  which  the  defendant 
must  give  a  better  name.     It  is  not  cause  of  demurrer. 

"  2.  The  indictment  is  in  proper  form,  and  sufficiently  avers  that  she  (the 
party  injured)  was  pregnant  and  quick  with  child,  which  was  destroyed  and 
killed,  etc. 

"3.  This  exception  is  not  true  in  fact.  The  indictment  contains  but  seven 
counts,  with  the  usual  conclusions. 

"4.  This  exception  is  not  cause  of  demurrer.  If  the  counts  are  improperly 
joined,  the  court  may  be  asked  to  interfere  before  the  trial,  and  put  the  common- 
wealth to  its  election. 

"  5.  The  name  Ford  alone,  there  being  no  plea  in  abatement,  is  not  a  nullity ; 
and  as  to  inserting  Susannah  Schoch  as  a  party,  that  rests  with  the  prosecution. 
Two  or  more  may  be  indicted  for  a  conspiracy  with  others  not  parties." 

(c)  This  is  necessary  at  common  law,  and  under  the  statutes.  State  v.  Drake, 
1  Vroom  (N.  J.),  432 

231 


(206)  OFFENCES   AGAINST   THE   PERSON. 

aforesaid,  and  within  the  jurisdiction  of  the  said  court,  in  and 
upon  the  said  S.  R.  S.,  then  and  there  being  big  and  pregnant(6?) 
with  a  certain  other  child,  did  make  another  violent  assault, 
and  a  certain  other  instrument,  made  of  silver  or  other  metal, 
in  the  shape  and  form  of  a  hook,  up  and  into  the  womb  and 
body  of  the  said  S.,  then  and  there  violently,  wickedly,  and 
inhumanly  did  force  and  thrust,  with  a  wicked  intent  to  cause 
and  procure  the  said  S.  to  miscarry,  and  to  bring  forth  the  said 
child  of  which  she  was  big  and  pregnant,  as  last  aforesaid,  dead, 
by  reason  and  means  of  which  said  last  mentioned  premises, 
she  the  said  S.,  afterwards,  to  wit,  on,  etc.,  miscarried,  and  was 
delivered  of  the  said  child,  being  a  female  child,  the  said  child 
being  dead  at  the  time  of  delivery,  to  the  great  injury  and  det- 
riment of  the  said  S.,  to  the  evil  example  of  all  others  in  like 
manner  offending,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(206)  Third  count,  merely  averring  pregnancy  in  same. 

That  the  said  W.  B.  T.,  A.  D.  alias  A.  F.,  and  —  F.,  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at  the  county  afore- 
said, and  within  the  jurisdiction  of  the  said  court,  in  and  upon 
the  said  S.  R.  S.,  then  and  there  being  pregnant  with  a  certain 
other  child,  did  make  another  violent  assault,  and  a  certain 
other  instrument,  made  of  silver  or  other  metal,  in  the  shape 
and  form  of  a  hook,  up  and  into  the  womb  and  body  of  the  said 
S.,  then  and  there  violently,  wickedly,  and  inhumanly  did  force 
and  thrust,  with  a  wicked  intent,  to  wit,  to  cause  and  procure 
the  said  S.  to  miscarry  and  to  bring  forth  the  said  child  of 
which  she  was  big  and  pregnant,  as  last  aforesaid,  dead,  to  the 
great  injury  and  detriment  of  the  said  S.,  to  the  evil  example 
of  all  others  in  like  manner  offending,  and  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(rf)  That  "quickening"  is  not  essential  to  the  indictment,  see  Com.  r.  De- 
main,  supra;  Mills  v.  Cora.,  13  Penn.  St.  631.  It  has  been  held  otherwise  at 
common  law  in  Massachusetts ;  Com.  v.  Parlcer,  9  Met.  263 ;  New  Jersey ; 
State  V.  Cooper,  2  Zab.  57;  and  Iowa;  Abrams  v.  Foshee,  3  Clarke,  274. 

232 


ABORTION.  (208) 

(207)  Assault  on  a  ivoman  with  quick  child,,  so  that  the  child  was 
brought  forth  dead.     {At  common  law.){e) 

That  defendant,  on,  etc.,  at,  etc.,  in  and  upon  M.,  the  wife  of 
one  W.  E.,  then  and  there  being  big  with  a  quick  child,  did 
make  an  assault ;  and  her  the  said  M.,  then  and  there  did  beat, 
wound,  and  ill-treat,  so  that  her  life  was  greatly  despaired  of, 
by  reason  whereof  she  the  said  M.,  afterwards,  to  wit,  on,  etc., 
at,  etc.,  did  bring  forth  the  said  child  dead,  and  other  wrongs 
to  the  said  M.  then  and  there  did,  against,  etc.  {Conclude  as  in 
book  1,  chapter  3.) 

(208)  Against  A.  the  principal,  for  producing  an  abortion  by  using 
an  instrument  on  the  person  of  a  third  party,  and  B.  an  acces- 
sary before  the  fact,  under  the  English  statute.{f) 

That  T.  A.,  late  of,  etc.,  on,  etc.,  at,  etc.,  feloniously,  unlaw- 
fully, and  maliciously  did  use  a  certain  instrument,  the  name  of 
which  instrument  is  to  the  jurors  unknown,  by  then  and  there 
forcing,  thrusting,  and  inserting  the  said  instrument  into  the 

(e)  Stark.  C.  P.  429. 

(/)  R.  V.  Ashmall,  9  C.  &  P.  236.  At  the  trial,  the  defendant,  Ashmall,  was 
called,  but  did  not  appear ;  but  Fay,  who  had  been  on  bail,  appeared.  Godson, 
for  the  defendant  Fay :  "I  submit  that  my  client  is  not  compellable  to  plead  to 
this  indictment.  He  is  indicted  as  an  accessary,  and  as  an  accessary  only.  For- 
merly an  accessary  before  the  fact  could  in  no  case  be  brought  to  trial  without  his 
principal,  except  after  the  con\'iction  of  his  principal,  or  by  his  own  consent. 
But  now,  by  the  stat.  7  Geo.  IV.  c.  64,  s.  9,  accessaries  before  the  fact  may  be 
tried  in  either  one  of  three  modes  :  1st,  with  the  principal ;  2d,  after  the  convic- 
tion of  the  principal  felon ;  or,  3d,  for  a  substantive  felony.  This  indictment  is 
not  for  a  substantive  felony,  because  everything  charged  against  Mr.  Fay  is 
charged  as  having  been  done  accessarily  to  Ashmall ;  and  what  shows  decisively  that 
Mr.  Fay  is  charged  as  an  accessary  only,  is,  that  if  Mr.  Ashmall  was  acquitted 
on  this  indictment,  Fay  must  be  acquitted  also  as  a  legal  consequence."  Car- 
rington,  on  the  same  side  :  "At  the  time  of  the  passage  of  the  act,  7  Geo.  IV.  c. 
64,  I  had  occasion  to  compare  it  with  all  the  previous  enactments  on  the  subject, 
and  I  believe  I  am  correct  in  stating  that  the  only  alteration  in  the  law  then 
made,  as  to  the  trial  of  accessaries  without  and  before  the  conviction  of  the  prin- 
cipal, was  by  the  provisions  relating  to  the  accessary  being  indicted  for  a  sub- 
stantive felony.  I  submit,  also,  that  an  indictment  for  a  substantive  felony  must 
be  so  framed  as  not  to  depend  on  the  conviction  or  acquittal  of  any  person,  ex- 
cept the  party  who  is  charged  with  the  substantive  felony  ;  indeed,  the  ordinary 
counts  for  the  substantive  felony  of  being  accessary  do  not  even  name  the  princi- 
pal, but  merely  state  him  to  be  'a  certain  evil  disposed  person.'  "  Gurney,  B. 
(after  conferring  with  Patterson,  J.):  "My  learned  brother  Patterson  concurs 
with  me  in  opinion  that  Mr.  Fay  is  not  compellable  to  plead  to  this  indictment  at 
present.  There  might  have  been  an  indictment  against  him  for  a  substantive 
felony,  but  this  is  not  so." 

233 


(210)  OFFENCES   AGAINST   THE   PERSON. 

private  parts  of  H.  L.,  now  known  by  the  name  of  H.  E.,  with 
intent  in  so  doing,  then  and  there  and  thereby  to  procure  the 
miscarriage  of  the  said  H.  L.,  now  known  by  the  name  of  H.  E., 
against,  etc.,  and  against,  etc.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present,  that  T.  J.  F.,  late  of, 
etc.,  before  the  committing  of  the  felony  by  the  said  T.  A.,  as 
aforesaid,  to  wit,  on,  etc.,  at,  etc.,  feloniously  did  procure,  coun- 
sel, and  command  the  said  T.  A.  the  felony  aforesaid,  in  manner 
and  form  aforesaid,  to  commit,  against,  etc.,  and  against,  etc. 
{Conclude  as  in  booh  1,  chapter  3.) 

(209)  Administering  a  potion  at  common  law,  with  intent  to  produce 

ahortion.{g) 
That  A.  B.,  of  in  the  county  of  laborer,  on,  etc., 

at  B.  aforesaid,  in  the  county  aforesaid,  did,  unlawfully  and 
wickedly,  administer  to,  and  cause  to  be  administered  to  and 
taken  by  one  C.  B.,  single  woman,  she  the  said  C.  B.  being  then 
and  there  pregnant  and  quick  with  child,  divers  quantities,  to 
wit,  four  ounces,  of  a  certain  noxious,  pernicious,  and  destruc- 
tive substance  called  savine;{h)  with  intent  thereby  to  cause  and 
procure  the  miscarriage  of  the  said  C.  B.,  and  the  premature 
birth  of  the  said  child,  of  which  the  said  C.  B.  was  then  and 
there  pregnant  and  quick;  by  the  means  whereof,  the  abortion, 
miscarriage,  and  premature  birth  of  the  said  child  was  caused 
and  produced.  And  she  the  said  C.  B.,  afterwards,  to  wit,  on, 
etc.,  next  following,  at  B.  aforesaid,  in  the  county  aforesaid,  by 
means  of  the  noxious,  pernicious,  and  destructive  substance  afore- 
said, so  as  aforesaid  administered  by  the  said  A.  B.,  and  taken 
by  the  said  C.  B.,  was  prematurely  delivered  of  the  said  child, 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(210)  Producing  abortion  in  New  York,  2  R.  S.  550-51,  §  9,  2d  ed. 

That,  etc.,  on,  etc.,  in  and  upon  one  S.  S.,  she  the  said  S.  S., 
then  and  there,  etc.,  being  pregnant  with  a  quick(z)  child,  felo- 
niously and  wilfully  did  make  an  assault ;  and  that  the  said  de- 

{g)  3  Chit.  C.  L.  797,  800;  Davis's  Free.  33. 

(Ji)  Not  necessary  to  state  the  medicine.  State  v.  Van  Houten,  37  Mo.  357  ; 
State  V.  Vawter,  7  Black.  922.     Infra,  note  to  210a. 

[i)  Under  this,  there  may  be  a  conviction  when  the  child  is  not  quick.  People 
V.  Jackson,  3  Hill,  92  ;  Lohman  v.  People,  1  Comst.  379. 

234 


ABORTION.  (2106) 

fendant  on,  etc.,  feloniously  and  wilfully  did  use  and  employ  on 
and  upon  the  body  and  womb  of  the  said  S.  S.,  the  mother  of 
the  said  quick  child,  certain  instruments,  to  wit,  one  piece  of 
wire,  etc.,  with  the  intent  thereby  then  and  there  feloniously  and 
wilfully  to  destroy  the  said  quick  child,(J)  the  same  not  being 
necessary  to  preserve  the  life  of  the  said  S.  S.,  the  mother  of  the 
said  child,  and  not  having  been  advised  by  two  physicians  to  be 
necessary  for  such  purpose  ;(^)  by  means  whereof  the  death  of  the 
said  quick  child  was  thereby  produced,  contrary,  etc.,  against, 
etc.(/)     {Conclude  as  in  book  1,  chapter  3.) 

(210a)  Abortion,  under  Mass,  stat.  c.  27. (m) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  "  with  force  and  arms,  ma- 
liciously, and  without  lawful  justification,  did  force  and  thrust 
a  certain  metallic  instrument,  which  he  the  said  W.  then  and 
there  had  and  held  in  his  hand,  into  the  womb  and  body  of  a 
certain  woman  by  the  name  of  S.  C,  she  the  said  S.  being  then 
and  there  pregnant  with  a  child,  with  the  wicked  and  unlawful 
intent  of  him  the  said  W.  then  and  there  to  cause  and  procure 
the  said  S.  to  miscarry  and  prematurely  to  bring  forth  the  said 
child,  with  which  she  was  then  and  there  pregnant  as  aforesaid; 
and  she,  the  said  S.,  on,  etc.,  at,  etc.,  by  means  of  the  said  forc- 
ing and  thrusting  of  said  instrument  into  the  womb  and  body 
of  the  said  Sarah,  in  manner  aforesaid,  did  bring  forth  the  said 
child  of  which  she  was  so  pregnant,  dead ;  against,  etc."  {Con- 
clude as  in  book  1,  chapter  3.) 

(2106)  Another  form. 

That  (the  defendant)  on,  etc.,  at,  etc.,  in  and  upon  one  E.  A. 
F.,  then  and  there  being  pregnant  with  child,  unlawfully  did 

(j)  An  indictment  omitting  this  averment  is  defective  under  the  statute  as  an 
indictment  for  manslaughter,  though  good  for  the  misdemeanor.  Lohman  v. 
People,  2  Barb.  216  ;   1  Comst.  379. 

[k)  That  the  averment  of  exceptions  is  unnecessary,  see  State  v.  Rupe,  41 
Tex.  33. 

(1)  On  this  indictment — to  which  there  is  a  second  count,  averring  the  opera- 
tion to  have  been  with  an  instrument  unknown — the  court  on  trial  held  that  if  the 
jury  doubted  as  to  the  killing  of  the  quick  child,  which  is  manslaughter  by  the 
Rev.  Statutes,  they  could  convict  of  killing  the  child  not  quick,  which  is  but  a 
misdemeanor.  The  jury  having  found  the  defendant  guilty  of  the  misdemeanor, 
the  directions  given  below  were  sustained  by  the  Supreme  Court.  People  v.  Jack- 
son, 3  Hill,  93. 

(to)  This  was  sustained  in  Com.  v.  Wood,  11  Gray,  86. 

235 


(210(?)  OFFENCES   AGAINST    THE    PERSON. 

make  an  assault,  and  a  certain  instrument,  the  name  of  which 
is  to  the  jurors  unknown,  up  and  into  the  womb  and  body  of 
the  said  F.,  unlawfully  did  force  and  thrust,  with  intent  then, 
there,  and  thereby  to  cause  and  procure  the  said  F.  to  miscarry, 
abort,  and  to  bring  forth  the  said  child  of  which  she  was  preg- 
nant as  aforesaid,  and  to  kill  and  murder  said  child,  by  reason 
and  means  of  which  said  last  mentioned  premises,  the  said  child 
was  killed  and  its  life  destroyed  in  its  mother's  womb,  and  she, 
the  said  F.,  afterwards,  to  wit,  on,  etc.,  miscarried,  and  was 
aborted  and  delivered  of  the  said  child,  the  sex  thereof  being 
to  the  jurors  unknown,  said  child  being  at  the  time  of  its  birth 
dead.(w) 

(210c')  Accessary  before  the  fact  in  Massachusetts. 

"And  the  jurors  aforesaid,  for,  etc.,  on  their  oath  aforesaid, 
do  further  present,  that  a  certain  person,  whose  name  and  a 
more  particular  description  of  whom  are  to  said  jurors  unknown, 
on,  etc.,  at,  etc.,  with  force  and  arms,  with  intent  to  procure 
the  miscarriage  of  one  A.  F.  C,  did  unlawfully  use  some  un- 
lawful means  to  the  said  jurors  unknown,  with  said  intent,  she 
the  said  A.  being  then  and  there  pregnant  with  child  ;  and  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  A.  afterwards,  to  wit,  on,  etc.,  at,  etc.,  by  means  of 
the  unlawful  means  so  as  aforesaid  to  the  said  jurors  unknown, 
in  manner  and  form  aforesaid  used  by  said  person  so  as  afore- 
said unknown,  then  and  there  died ;  against  the  peace,  etc.  And 
the  jurors  aforesaid,  for,  etc.,  on  their  oath  aforesaid,  do  further 
present,  that  G.  A.  E.,  M.  J.  A.,  and  M.  E.  S.,  before  the  said 
felony  and  abortion  was  committed  in  manner  and  form  afore- 
said, to  wit,  on,  etc.,  with  force  and  arms,  at,  etc.,  did  feloniously 
and  maliciously  incite,  move  and  procure,  aid,  counsel,  hire,  and 
command  the  said  person  as  aforesaid  unknown  the  said  felony 

(n)  Com.  V.  Snow,  116  Mass.  47.  In  this  case  it  was  held  that  the  allegation 
as  to  the  time  and  place  of  the  offence  applied  to  the  particular  acts  set  forth  as 
the  means  by  which  the  abortion  was  alleged  to  be  performed,  as  well  as  to  the 
alleged  assault.  And  it  was  held  also  that  the  instrument  and  the  means  by  which  it 
was  used  were  sufficiently  described.  It  was  further  held  that  it  was  not  neces- 
sary to  prove  an  assault,  or  an  intent  to  kill  the  child,  and  that  the  defendant 
might  be  convicted  although  the  woman  consented. 

236 


ABORTION.  (210cZ) 

and  abortion,  in  manner  and  form  aforesaid,  then  and  there  to 
do  and  commit,  against  the  peace,"  etc.(o) 

(210t/)  Form  used  in  Philadelphia  in  1880. 

First  count.     By  uiiknown  drug. 

That  late  of  the  said  county  on  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
at  the  county  aforesaid,  and  within  the  jurisdiction  of 
this  court,  with  force  and  arms,  etc.,  unlawfully  and  wilfully 
did  feloniously  administer  to  one  she  the  said  being 

then  and  there  a  woman  pregnant  with  child,  a  certain  drug 
and  substance,  the  name  and  components  of  the  said  drug  and 
substance  being  to  this  grand  inquest  as  yet  unknown,  with 
intent  thereby  then  and  there  to  procure  the  miscarriage  of  her 
the  said  contrary,  etc. 

Second  count.     By  poison. 

That  the  said  late  of  the  said  county  on  the  said 

day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  at  the  county  aforesaid,  and  within  the  juris- 

diction of  this  court,  with  force  and  arms,  etc.,  unlawfully  and 
wilfully  did  feloniously  administer  to  one  she  the  said 

being  then  and  there  a  woman  pregnant  with  child,  a 
certain  poison,  drug,  and  substance,  the  name  and  components 
of  the  said  poison,  drug,  and  substance  being  to  this  grand 
inquest  as  yet  unknown,  with  intent  thereby  then  and  there  to 
procure  the  miscarriage  of  her  the  said  contrary,  etc. 

Third  count.    By  unknown  instruments. 

That  the  said  late  of  the  said  county  on  the  said 

day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  at  the  county  aforesaid,  and  within  the  juris- 

diction of  this  court,  with  force  and  arms,  etc.,  unlawfully  and 
wilfully  did  feloniously  use  a  certain  instrument,  the  name  of 
which  said  instrument  is  to  this  grand  inquest  as  yet  unknown, 
in,  upon,  about,  and  within  the  body  of  the  said  she  the 

(o)  Sustained  as  against  an  accessary  before  the  fact  in  Com.  v.  Adams,  127 
Mass.  15. 

237 


(210e)  OFFENCES   AGAINST    THE    PERSON. 

said  being  then  and  there  a  woman  pregnant  with  child, 

with  intent  thereby  then  and  there  to  procure  the  miscarriage 
of  her  the  said  contrary,  etc. 

Fourth  count.     By  unhnown  means. 

That  the  said  late  of  the  said  county  on  the  said 

day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  at  the  county  aforesaid,  and  within  the  juris- 

diction of  this  court,  with  force  and  arms,  etc.,  unlawfully  and 
wilfully  did  feloniously  use  certain  means,  the  nature  of  which 
said  means  is  to  this  grand  inquest  as  yet  unknown,  in,  upon, 
about,  and  within  the  body  of  the  said  she  the  said 

being  then  and  there  a  woman  pregnant  with  child,  with  intent 
thereby  then  and  there  to  procure  the  miscarriage  of  her  the 
said  contrary,  etc. 

(210e)  Same,  avowing  death.     By  unhnown  drug. 

That  late  of  the  said  county  on  the  day  of 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
at  the  county  aforesaid,  and  within  the  jurisdiction  of 
this  court,  with  force  and  arms,  etc.,  unlawfully  and  wilfully 
did  feloniously  administer  to  one  she  the  said  then 

and  there  being  a  woman  pregnant  with  child,  and  supposed 
and  believed  by  the  said  to  be  then  and  there  pregnant 

with  child,  a  certain  drug,  the  name  and  components  of  the 
said  drug  being  to  this  grand  inquest  as  yet  unknown,  with 
intent  thereby  then  and  there  to  procure  the  miscarriage  of  her 
the  said  ;  and  in  consequence  of  the  unlawful,  wilful  and 

felonious  administering  of  the  said  drug,  as  aforesaid,  the  said 
did  then  and  there  become  sickened  and  distempered  in 
her  body,  and  afterwards,  to  wit,  on  the  said  day  of 

in  the  year  aforesaid,  at  the  county  aforesaid,  and  within  the 
jurisdiction  of  this  court,  in  consequence  of  the  unlawful,  wil- 
ful, and  felonious  administering  of  the  said  drug  as  aforesaid, 
and  of  the  sickness  and  distemper  in  her  body  as  aforesaid,  did 
die,  contrary,  etc. 

Second  count.     By  unhiown  poison. 

That  the  said  late  of  the  said  county  on  the  said 

238 


ABORTION.  (210e) 

day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  at  the  county  aforesaid,  and  within  the  juris- 

diction of  this  court,  with  force  and  arms,  etc,  unlawfully  and 
wilfully  did  feloniously  administer  to  one  she  the  said 

then  and  there  being  a  woman  pregnant  with  child,  and 
supposed  and  believed  by  the  said  to  be  then  and  there 

pregnant  with  child,  a  certain  poison,  drug  and  substance,  the 
name  and  components  of  the  said  poison,  drug  and  substance 
being  to  this  grand  inquest  as  yet  unknown,  with  intent  thereby 
then  and  there  to  procure  the  miscarriage  of  her  the  said  ; 

and  in  consequence  of  the  unlawful,  wilful,  and  felonious  ad- 
ministering of  the  said  poison,  drug,  and  substance  as  aforesaid, 
the  said  did  then  and  there  become  sickened  and  dis- 

tempered in  her  body,  and  afterwards,  to  wit,  on  the  said 
day  of  in  the  year  aforesaid,  at  the  county  aforesaid,  and 

within  the  jurisdiction  of  this  court,  in  consequence  of  the 
unlawful,  wilful,  and  felonious  administering  of  the  said  poison, 
drug,  and  substance  as  aforesaid,  and  of  the  sickness  and  dis- 
temper in  her  body  as  aforesaid,  did  die,  contrary,  etc. 

Third  count     By  unknown  means. 

That  the  said  late  of  the  said  county  on  the  said 

day  of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  at  the  county  aforesaid,  and  within  the  juris- 

diction of  this  court,  with  force  and  arms,  etc.,  unlawfully  and 
wilfully  did  feloniously  use  certain  means,  the  nature  of  which 
said  means  is  to  this  grand  inquest  as  yet  unknown,  in,  upon, 
about,  and  within  the  body  of  the  said  she  the  said 

being  then  and  there  a  woman  pregnant  with  child,  and  sup- 
posed and  believed  by  the  said  to  be  then  and  there 
pregnant  with  child,  with  intent  thereby  then  and  there  to 
procure  the  miscarriage  of  her  the  said  ;  and  in  consequence 
of  the  unlawful,  wilful,  and  felonious  using  of  the  said  means 
as  aforesaid,  the  said  did  then  and  there  become  sickened 
and  distempered  in  her  body,  and  afterwards,  to  wit,  on  the 
said  day  of  in  the  year  last  aforesaid,  at  the  county 
aforesaid,  and  within  the  jurisdiction  of  this  court,  in  con- 
sequence of  the  unlawful,  wilful,  and  felonious  using  of  the  said 

239 


(212)  OFFENCES    AGAINST    THE    PERSON. 

means  as  aforesaid,  and  of  the  sickness  and  distemper  in  her 
body  as  aforesaid,  did  die,  contrary,  etc.(p) 

(211)  Administering  medicine^  under  the  Indiana  statute^  with  intent 

to  'produce  abortion.{q) 

That  A.  B.,  on,  etc.,  at,  etc.,  did  feloniously,  wilfully,  and 
unlawfully  administer  to  one  L.  H.,  then  and  there  heing  preg- 
nant with  a  child,  a  large  quantity  of  medicine  with  intent 
thereby  feloniously,  etc.,  to  procure  the  miscarriage  of  said  L. 
H.,  the  administering  said  medicine  to  said  L.  H.  not  then  and 
there  being  necessary  to  preserve  the  life  of  said  L.  H.,  contrary 
to  the  statute,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(212)  Attempt  to  procm^e  abortion  by  administering  a  drug,  under 

Ohio  statute. 

That  A.  B.,  on  the  first  day  of  October,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty,  in  the  county  of 
Cuyahoga  aforesaid,  unlawfully,  wilfully,  and  feloniously  did 
administer  to,  and  cause(r)  to  be  taken  by  one  M.  !N".,  then  and 
there  being  a  pregnant  woman,  a  large  quantity  of  a  certain 
noxious  and  poisonous  drug  and  substance,  to  wit,  one  pint  of 
a  certain  noxious  and  poisonous  decoction  of  brandy,  logwood, 
and  other  poisonous  drugs  and  medicines  to  the  deponent  afore- 
said unknown,  with  intent  then  and  there,  and  thereby,  to  pro- 

(;))  For  the  above  two  preceding  forms  I  am  indebted  to  W.  AV.  Ker,  Esq., 
formerly  assistant  district  attorney  in  Philadelphia. 

(</)  State  V.  Vawter,  7  Blackf.  592.  The  objection  made  to  the  indictment 
was,  that  it  neither  names  the  medicine  administered,  nor  states  that  it  was  nox- 
ious. 

The  language  of  the  statute  is,  that  "  every  person  who  shall  wilfully  admin- 
ister to  any  pregnant  woman  any  medicine,  drug,  substance,  or  thing  whatever, 
or  employ  any  instrument,  etc.,  with  intent  thereby  to  procure  the  miscarriage 
of  any  woman,"  etc.  "This  statute,"  said  the  court,  "so  far  as  the  present 
case  is  concerned,  is  similar  to  the  second  section  of  the  statute  of  43  Geo.  III. ; 
and  it  has  been  held  that,  on  the  trial  of  an  indictment  on  that  section,  the  name 
of  the  medicine  administered  need  not  be  proved ;  that  the  question  is,  whether 
the  prisoner  administered  any  matter  or  thing  to  the  woman  with  intent  to  pro- 
cure abortion."  Rex  v.  Phillips,  3  Campb.  73.  I  think  the  name  of  the  medi- 
cine need  not  be  proved  ;  there  seems  to  be  no  good  reason  for  naming  it  in  the 
indictment.  It  is  also  decided  in  the  case  first  i-eferred  to,  that  the  indictment 
need  not  describe  the  medicine  as  noxious.  See  State  v.  Van  Houten,  3  7  Mo. 
357. 

(r)  As  to  meaning  of  this  term  see  R.  v.  Wilson,  D.  &  B.  127  ;  7  Cox  C.  C. 
190;  R,  V.  Farron,  D.  &  B.  164. 

240 


ABORTION.  (212) 

cure  the  miscarriage  of  the  said  M.  !N". ;  said  administering  and 
taking  the  aforesaid  poisonous  and  noxious  decoction  of  brandy, 
logwood,  and  other  unknown  noxious  and  poisonous  drugs  and 
medicines,  then  and  there  being  wholly  unnecessary  for  the 
preservation  of  the  life  of  the  said  M.  N.,  and  said  administer- 
ing and  taking  said  noxious  and  poisonous  decoction  of  brandy, 
logwood,  and  said  unknown  noxious  drugs  and  medicines  then 
and  there  not  having  been  advised  by  two  physicians  to  be 
necessary  for  the  preservation  of  the  life  of  the  said  M.  JN'.(s) 
{Conclude^  etc.) 

(s)  Warren's  C.  L.  95. 
VOL.  I.— 16  241 


OFFENCES    AGAINST    THE    PERSON. 


CHAPTER  YII. 

ASSAULTS. 

(213)  Indictment  for  a  common  assault. 

(214)  Assault  without  battery. 

(215)  Assault  and  battery.     Massachusetts  form. 

(216)  Information  in  Connecticut  for  assault  and  battery  and  breach  of  peace, 

■with  commencement  and  conclusion. 

(217)  Assault  and  battery  in  New  York,  with  commencement  and  conclu- 

sion. 

(218)  Assault  and  battery  in  New  Jersey,  with  commencement  and  conclu- 

sion. 

(219)  Assault  and  battery  in  Pennsylvania,  with  commencement  and  conclu- 

sion. 

(220)  Threatening  in  a  menacing  manner,  under  Ohio  statute. 

(221)  Assault  and  encouraging  a  dog  to  bite. 

(222)  Assault  and  tearing  prosecutor's  hair. 

(223)  Assaulting  the  driver  of  a  chaise,  and  overturning  the  chaise  with  the 

wheel  of  a  cart. 

(224)  Assault  and  beating  out  an  eye. 

(225)  Assault  and  riding  over  a  person  with  a  horse. 

(226)  [For  assault  on  a  pregnant  Avoman,  see  204,  etc.] 

(227)  Assault  by  administering  cantharides  to  prosecutor. 

(228)  Assault  with  intent  to  kill  an  infirm  person,  by  throwing  him  on  the 

ground  and  beating  him. 

(229)  For  throwing  corrosive  fluid,  with  intent,  etc. 

(230)  [See  for  "assaults  with  intent,"  etc.,  242,  etc.,  and  also,  1046,  etc.] 

(231)  Assault  with  beating  and  wounding  on  the  higli  seas. 

(232)  Assault  on  high  seas,  by  binding  the  prosecutor  and  forcing  an  iron 

bolt  down  his  throat. 

(233)  Stabbing  with  intent  to  wound,  under  Ohio  stat.  p.  49,  ^  6. 

(234)  Shooting  with  intent  to  wound,  under  Ohio  stat.  p.  49,  §  6. 

(235)  Assault  on  high  seas,  with  dangerous  weapon. 

(236)  Another  form  for  same*. 

(237)  Same  in  a  foreign  port,  the  weapon  being  a  Spanish  knife. 

(238)  Second  count,  same  as  first,  charging  the  instrument  differently. 

(239)  Third  count.     Assault  with  intent  to  kill. 

(240)  Assault  and  false  imprisonment  at  common  law. 

(241)  Assault  and  false  imprisonment,  witli  the  obtaining  of  five  dollars. 

(242)  Assault  with  intent  to  commit  murder  or  other  felony  at  common  law. 

242 


ASSAULTS.  (213) 

(243)  Another  form  for  same. 

(244)  Assault  with  intent  to  drown. 

(245)  Assault  with  intent  to  murder,  under  the  New  York  Rev.  Stat. 

(246)  Second  count.     AVith  intent  to  maim. 

(247)  Assault  with  intent  to  commit  a  felony  generally. 

(248)  Felonious  assault,  under  the  Massachusetts  statute. 
(248a)   Assault  with  intent  to  murder,  under  same  statute. 
(2486)   Shooting  in  Indiana. 

(249)  Assault  with  intent  to  murder,  in  South  Carolina. 
(249a)   Same  in  Indiana. 

(250)  Felonious  assault  with  intent  to  rob,  being  armed.     Rev.  Sts.  of  Mass. 

ch.  125,  §  14. 
(250a)   Same  under  English  statute. 

(251)  Assault  with  intent  to  rob,  against  two. 

(252)  Another  form  for  same. 

(253)  Assault  with  intent  to  ravish. 

(254)  Same  under  Rev.  Sts.  of  Mass.  ch.  125,  |  19. 

(255)  Assault  with  intent  to  ravish,  under  Ohio  stat.  p.  48,  §  4. 

(256)  Another  form  for  assault  with  iutent  to  ravish. 

(257)  Same  against  two. 

(259)  Indecent  assault. 

(260)  Indecent  assault  with  intent  to  have  an  improper  connection. 

(261)  Indecent  assault  by  stripping. 

(262)  Assault  with  intent  to  rape.     Attempting  to  abuse  a  female  under  ten 

years  of  age  under  Ohio  stat.  p.  48,  §  4. 

(263)  Assault  with  intent  to  steal. 

(263a)  Injury  to  child  by  withholding  its  food. 

(218)  Indictment  for  a  common  assault. 

That  A.  B.,(«)  late  of,  etc.,  on,  etc.,  with  force  and  arms,(Z') 
in  and  upon  one  C.  D.,(c)  in  the  peace  of  Grod  and  of  the  said 
state  then  and  there  heing,((i)  did  unlawful ly((=')  and  wilfullj(/) 
make  an  assault  ',{g)  and  him  the  said  C.  D.  did  then  and  there 

(a)  That  two  or  more  defendants  may  be  joined,  see  Wh.  Cr.  L.  8th  ed.  §  638. 

{b)  As  to  necessity  of  these  words,  see  supra,  chap.  II.  form  2,  p.  16. 

(c)  The  injured  party  may  be  charged  as  unknown.  Wh.  Cr.  PI.  &  Pr.  §  111  ; 
siq^ra,  notes  to  form  2.  p.  20. 

Two  or  more  persons  assaulted  by  a  single  blow  may  be  joined.  Wh.  on  Cr. 
Ev.  §  590.  Otherwise  when  the  act  was  not  single.  lb.  ;  State  v.  McClintock,  8 
Iowa,  203.  That  it  is  not  necessary  to  aver  that  the  party  injured  was  at  the 
time  alive,  see  Com.  v.  Ford,  5  Gray,  475. 

{d)  This  is  surplusage.     Supra,  notes  to  form  114. 

(e)  "Unlawfully"  is  unnecessary,  though  harmless.  Wh.  Cr.  PI.  &  Pr.  §  269  ; 
Bloomer  v.  State,  3  Sneed,  66;   State  v.  Bray,  1  Mo.  126. 

(/)   See  State  v.  Bray,  1  Mo.  126. 

[g)  In  Louisiana  this  is  not  necessary  where  the  facts  making  up  the  assault  are 
averred.     State  w.  Munce,  12  La.  Ann.  625. 

243 


(216)  OFFENCES    AGAINST    THE    PERSON. 

beat,(A)  wound,  and  ill-treat,  and  other  wrongs  to  the  said  C.  D. 
then  and  there  did,  against  the  peace,  etc.  {Conclude  as  iJi  book 
1,  chapter  3.) 

(214)  Assault  loithout  battery. 

That  A.  B.,  of  in  the  county  of  laborer,  on,  etc., 

with   force  and  arms,  at  in  the  county  aforesaid,  in  and 

upon  one  C.  D.  (in  the  peace  of  tlie  said  commonwealth  then 
and  there  being),  with  a  certain  otfensive  weapon  called  a  cane, 
did  make  an  assault,  and  other  wrongs  to  the  said  C.  D.  then 
and  there  did  and  committed,  to  the  great  injury  of  him  the 
said  C.  D.,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(215)  Assault  and  battery.     3Iassachusetts  form. 

That  A.  B.,  of  in  the  county  of  laborer,  on,  etc., 

with  force  and  arms,  at  in  the  county  aforesaid,  in  and 

upon  the  body  of  one  C  D.  (in  the  peace  of  the  said  common- 
wealth then  and  tliere  being)  an  assault  did  make,  and  him  the 
said  C.  D.  did  then  and  there  beat,  abuse,  wound,  and  ill-treat, 
and  other  wrongs  then  and  there  did  and  committed,  to  the 
great  damage  of  the  said  C.  D.,  and  against  the  peace  and  dig- 
nity of  the  commonwealth  aforesaid.  {Conclude  as  in  book  1, 
chapter  3.) 

(216)  Information  in  Connecticut  for  assault  and  battery  and  breach 
of  jpeace^  with  commencemejit  and  coiiclusion. 

State  of  Connecticut,  New  Haven  County,  ss.      New  Haven, 

day  of  184 

To  justice  of  the  peace  for  said  county,  residing  in  said 

town,  comes  a  grand  juror  for  said  town,  and  on  his  oath 

of  office,  information  makes,  that,  at  said  New  Haven,  on  the 

da}'  of  184  with  force  and  arms,  in  and  upon 

in  the  peace  then  and  there  being,  did  make  an  assault, 

and  the  said  then  and  there  did  beat,  bruise,  wound, 

and  ill-treat;  and  other  wrongs  and  injuries  then  and  there  did, 

[h)  The  practice  is  to  allege  a  battery,  though  if  no  battery  be  shown,  the  de- 
fendant may  be  convicted  of  a  common  assault.  Wh.  Cr.  L.  8th  ed.  §  640,  and 
cases  there  cited.  The  particular  acts  of  violence  need  not  be  set  forth  when  an 
assault  is  averred.     Bloomer  v.  State,  3  Sneed  (Tenn.),  66. 

244 


ASSAULTS.  (218) 

to  the  great  damage  of  the  said  and  against  the  peace. 

And  the  grand  juror  farther  informs,  that  the  said  with 

force  and  arms,  on  the  day  and  year  last  aforesaid,  at  'New 
Haven  aforesaid,  by  tumultuous  and  offensive  carriage  towards, 
and  by  threatening,  traducing,  challenging,  quarrelling,  assault- 
ing, beating,  and  striking  in  the  peace  then  and  there 
being,  did  greatly  disturb  the  public  peace,  and  other  wrongs 
and  injuries  then  and  there  committed,  against  the  peace,  of 
evil  example,  and  contrary  to  the  statutes  in  such  cases  made 
and  provided.  And  the  grand  juror  aforesaid  further  com- 
plains, that  {setting  forth  further  breach  of  peace,  if  any,  etc). 
Wherefore  the  grand  juror  aforesaid  prays  process,  and  that  the 
said  may  be  arrested  and  held  to  answer  the  complaint, 
and  be  dealt  with  according  to  law.  Dated  at  Kew  Haven  the 
day  and  year  first  aforesaid. 

Grand  Juror. 

(217)  Assault  and  battery  in  Ncio   York,  with  commencement  and 

conclusion. 

City  and  County  of  New  York,  ss.  The  jurors  of  the  people 
of  the  state  of  N'ew  York,  in  and  for  the  body  of  the  city  and 
county  of  ISTew  York,  upon  their  oath  present, 

That  A.  B.,  late  of  the  First  Ward  of  the  city  of  I^ew  York, 
in  the  county  of  ]^ew  York  aforesaid,  etc.,  on,  etc.,  at  the  ward, 
city,  and  county  aforesaid,  in  and  upon  the  body  of  C.  D.,  in 
the  peace  of  God  and  of  the  said  people,  then  and  there  being, 
with  force  and  arms  did  make  an  assault ;  and  him  the  said  C* 
D.  did  then  and  there  beat,  wound,  and  ill-treat,  and  other 
wrongs  and  injuries  to  the  said  C.  D.  then  and  there  did,  to  the 
great  damage  of  the  said  C.  D.,  to  the  evil  example  of  all  others 
in  like  case  offending,  and  against  the  peace  of  the  people  of  the 
state  of  New  York,  and  their  dignity,  etc. 

(218)  Assault  and  battery  in  New  Jersey,  with  commencement  and 

conclusion. 

County,  to  wit :    The  grand  inquest  for  the  state  of 
New  Jersey,  and  for  the  body  of  the  county  of  upon  their 

present. 
That  A.  B.,  late  of  the  township  of  in  the  county  of 

245 


(220)  OFFENCES    AGAINST    THE    PERSON. 

on,  etc.,  with  force  and  arms,  at  the  township  aforesaid, 
in  the  county  aforesaid,  and  within  the  jurisdiction  of  this 
court,  in  and  upon  one  C.  D.,  in  the  peace  of  God  and  of  this 
state,  then  and'  there  being,  an  assault  did  make,  and  him  the 
said  C.  D.  then  and  there  did  beat,  wound,  and  ill-treat,  and 
other  wrongs  to  the  said  C.  J),  then  and  there  did,  to  the  great 
damage  of  the  said  C.  D.,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  of  this 
state,  the  government  and  dignity  of  the  same. 

(219)  Assault  and  battery  in  Pennsylvania^  with  commencement  and 

conclusion. 

In  the  Court  of  Quarter  Sessions  of  the  peace  for  the  city  and 
county  of  Philadelphia,  Sessions,  187 

City  and  County  of  Philadelphia,  ss. 

The  grand  inquest  of  the  commonwealth  of  Pennsylvania, 
inquiring  for  the  city  and  county  of  Philadelphia,  upon  their 
respective  oaths  and  affirmations  do  present,  that  A.  B.,  late  of 
said  county,  etc.,  at  the  county  aforesaid,  and  within  the  juris- 
diction of  this  court,  with  force  and  arms,  in  and  upon  one  C. 
D.,  in  the  peace  of  the  said  commonwealth,  then  and  there 
being,  did  make  an  assault,  and  him  the  said  C.  D.  did  beat, 
wound,  and  ill-treat,  and  other  wrongs  to  him  the  said  C.  D. 
then  and  there  did,  to  the  great  damage  of  the  said  C.  D.,  and 
against  the  peace  and  dignity  of  the  commonwealth  of  Penn- 
sylvania. 

(220)   Threatening  in  a  menacing  manner^  under  Ohio  statute.{i) 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  in  the  county  of 

(t)  "This  offence,"  says  Mr.  "Warren,  "is  defined  in  the  same  section  of  the 
statute  that  defines  assault  and  battery.  And  in  Hamilton  County  it  has  been 
the  practice,  uniformly,  to  charge  it  in  the  same  count  with  those  offences. 
Otherwise  than  this,  no  precedents  for  the  offence  have  been  found  by  the  com- 
piler. The  offence  is  quite  different  from  an  assault.  By  the  common  law,  in  a 
prosecution  for  an  assault,  if  the  defendant  could  make  it  appear  that  he  only 
intended  to  terrify  by  his  conduct  and  gesticulations,  he  could  not  then  be  con- 
victed, for  an  assault  is  an  attempt  to  do  an  injury.  But  the  legislature  of  Ohio 
wisely  provided  against  this  injustice  by  imposing  the  same  penalty  upon  him 
who  attempts  to  put  another  in  fear,  as  upon  him  who  actually  commits  or  at- 
tempts to  commit  personal  violence;  thus  establishing  the  true  theory  that  every 
man  has  a  right  not  only  to  be  safe,  but  also  to  feel  safe.     The  words  'in  a  men- 

246 


ASSAULTS.  (222) 

aforesaid,  designing  and  intending  one  M.  K.,  then  and  there 
being,  in  great  bodily  fear  to  put,  him  the  said  M.  1^.  then  and 
there  did  unlawfully  and  maliciously  threaten,  in  a  menacing 
manner. 

(221)  Assault  and  encouraging  a  dog  to  hite.{j) 

That  A.  B.,  of  in  the  county  aforesaid,  laborer,  on,  etc., 

now  last  past,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and 
upon  one  C.  D.  an  assault  did  make,  and  him  the  said  C.  D.  did 
then  and  there  beat,  wound,  and  abuse,  and  that  he  the  said  A. 
B.  did  then  and  there  unlawfully  incite,  provoke,  and  encour- 
age a  certain  dog,  belonging  to  him  the  said  A.  B.,  him  the 
said  C.  D.  then  and  there  to  beset  and  bite ;  by  means  whereof 
the  same  dog  did  then  and  there  grievously  bite  the  right  leg 
of  him  the  said  C.  D.,  whereby  the  said  leg  of  him  the  said  C. 
D.  was  grievously  hurt  and  wounded,  and  his  life  greatly  endan- 
gered, and  other  wrongs  to  the  said  C.  D.  then  and  there  did, 
to  the  great  damage  of  the  said  C.  D.,  against,  etc. 

(222)  Assault  and  tearing  jprosecutor^ s  hair.{k) 

That  A.  B.,  of  in  the  county  aforesaid,  laborer,  on,  etc., 

with  force  and  arms,  at  in  the  county  aforesaid,  in  and 

upon  the  body  of  one  C.  D.  (in  the  peace  of  the  said  common- 
wealth, then  and  there  being)  did  make  an  assault,  and  her  the 
said  C.  D.  did  then  and  there  beat,  wound,  and  abuse ;  and  that 
he  the  said  A.  B.  did  then  and  there  unlawfully,  violently,  and 
cruelly  seize  and  lay  hold  of  the  said  C.  D.,  by  the  hair  of  her 
head,  and  did  then  and  there  with  great  force,  wrath,  and  vio- 
lence, pull  and  drag  the  said  C.  D.  by  the  same;  by  means 
whereof  he  the  said  A.  B.  did  then  and  there  unlawfully, 
cruelly,  and  brutally  pull  and  tear  the  hair  of  the  head  of  her 
the  said  C.  D.  oft'  by  the  roots,  and  the  head  of  her  the  said  C. 
D.  was  thereby  grievously  wounded  and  hurt,  and  the  said  C. 

acing  manner'  imply  that  there  must  be  something  more  than  a  threat  to  do  a 
future  injury ;  there  must  be  a  menacing  with  the  fist  or  a  weapon,  or  some  indi- 
cation that  the  offender  intends  to  carry  liis  threats  into  immediate  execution, 
or  otherwise  this  offence  will  not  be  complete.  And  the  offence  may  doubtless 
he  committed  without  uttering  even  a  single  word  of  speech."    Warren's  C.  L.  62. 

[j]  3  Chit.  C.  L.  824;  Cro.  C.  C.  145;  Stark.  C.  P.  389;' Davis's  Free.  58. 

Ck)  Davis's  Free.  56. 

247 


(224)  OFFENCES   AGAINST    THE   PERSON. 

D.  thereby  put  in  great  pain  and  torture,  and  other  wrongs 
then  and  there  did  and  committed,  to  the  great  damage  of  her 
the  said  C.  D.,  against,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

(223)  Assaulting  the  driver  of  a  chaise^  and  overturning  the  chaise 
with  the  wheel  of  a  cart.{l) 

That  A.  B.,  of  in  the  county  of  laborer,  on,  etc., 

with  force  and  arms,  at  B.,  in  the  county  aforesaid,  in  and  upon 
one  C.  D.  did  make  an  assault,  he  the  said  C.  D.  being  then  and 
there  in  a  certain  chaise  drawn  by  one  horse,  and  in  the  public 
street  and  common  highway  there;  and  that  he  the  said  A.  B., 
then  and  there  driving  a  horse  drawing  a  cart,  did,  in  the  high- 
way aforesaid,  unlawfully,  violently,  wantonly,  and  maliciously 
drive  said  horse,  so  as  aforesaid  drawing  said  cart,  to  and 
against  the  chaise  aforesaid,  and  that  by  such  driving  did  then 
and  there,  in  the  highway  aforesaid,  unlawfully,  wantonly, 
and  maliciously  force  said  cart  against  the  said  chaise,  and 
thereby  overturn,  with  one  of  the  wheels  of  said  cart,  the  said 
chaise  in  which  the  said  C.  D.  then  was  as  aforesaid,  by  means 
whereof  he  the  said  C.  D.  was  then  and  there  grievously  hurt, 
bruised,  and  wounded,  and  other  wrongs  then  and  there  did 
and  committed,  to  the  great  damage  of  him  the  said  C.  D., 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(224)  Assault  and  beating  out  an  eye.{m) 

That  A.  B.,  of  in  the  county  of  widow  (being  a 

person  of  depraved  and  malicious  disposition),  on,  etc.,  with 
force  and  arms,  at  aforesaid,  in  the  county  aforesaid,  in 

and  upon  one  C.  D.  violently  did  make  an  assault,  and  her  the 
said  C.  D.  did  then  and  there  beat,  wound,  and  ill-treat,  and 
that  she  the  said  A.  B.,  with  her  right  hand,  the  said  C.  D.,  in 
and  upon  the  left  eye  of  her  the  said  C.  D.,  then  and  there 
unlawfully,  violently,  and  maliciously  did  strike,  by  means 
whereof  the  said  C.  D.,  then  and  there,  the  use,  sight,  and  bene- 
fit of  her  said  left  eye  entirely  lost  and  was  deprived  of;  and 
also,  by  means  of  the  premises,  she  the  said  C.  D.  became  weak 

(I)  Davis's  Free.  57. 

(?/()  3  Chit.  C.  L.  822  ;  Davis's  Free.  55. 

248 


ASSAULTS.  (227) 

and  sick,  and  remained  so  weak  and  sick  from  thence  until  the 
day  of  taking  this  inquisition;  and  other  wrongs  then  and 
there  did  and  committed,  to  the  great  damage  of  the  said  C. 
D.,  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(225)  Assault  and  riding  over  a  person  with  a  horse.{n) 

That  A.  B.,  of  in  the  county  of  laborer,  on,  etc., 

at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon  the  body 
of  one  C.  D.  an  assault  did  make,  and  him  the  said  C.  D,  did 
then  and  there  beat,  wound,  and  abuse ;  and  that  the  said  A.  B. 
did  then  and  there,  unlawfully,  maliciously,  and  with  great 
force  and  violence,  ride  and  drive  a  certain  horse,  then  and  there 
under  the  guidance  and  command  of  him  the  said  A.  B., 
against,  upon,  and  over  the  body  of  the  said  C.  D.,  whereby  the 
said  C.  D.  was  then  and  there  grievously  wounded  and  bruised, 
and  his  life  thereby  greatly  endangered,  and  other  wrongs  then 
and  there  did  and  committed,  to  the  great  damage  of  him  the 
said  C.  D.,  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(226)  [For  assaults  on  a  pregnant  woman,  see  supra,  '■''Abortion" 

204,  eicl 

(227)  Assault  by  administering  cantharides  to  proseci(trix.{o} 

That  (defendant),  on,  etc.,  at,  etc.,  in  and  upon  one  E.  J.  did 
make  an  assault,  and  then  and  there  did  unlawfully  and  mali- 
ciously administer  and  cause  to  be  administered  to  and  taken 
by  the  said  E.  J.  a  large  quantity,  that  is  to  say,  two  scruples, 
of  cantharides,  the  same  being  then  and  there  a  deleterious  and 
destructive  drug,  with  intent  thereb}^  to  injure  the -health  of 
the  said  E.  J.,  and  the  said  E.  J.  became  in  consequence  thereof 
sick,  sore,  and  diseased,  and  disordered  in  her  body,  insomuch 
that  her  life  was  greatly  despaired  of,  etc.  {Conclude  as  i7i  book 
1,  chapter  3.) 

{Add  count  for  common  assault.) 

(n)  3  Chit.  C.  L.  823  ;   Davis's  Prec.  58. 

(o)  This  count  was  sustained  in  R.  v.  Button,  8  C.  &  P.  660.     See  supra,  138a. 

249 


(228)  OFFENCES   AGAINST    THE    PERSON. 

(228)  Assault  with  intent  to  kill  an  infirm  jjersoji,  by  throwing  him 
on  the  ground  and  beating  him.{p) 

That  A.  iN".,  late  of  the  county  aforesaid,  laborer,  with  force 
and  arms,  at  and  in  the  county  aforesaid,  in  and  upon  A.,  a  man 
of  color,  then  and  there  being  a  deformed  person,  and,  by  reason 
of  his  being  such  a  deformed  person,  being  unable  to  walk  or 
otherwise  to  move  himself  from  place  to  place,  and  also  then 
and  there  being  deficient  in  voice,  so  as  to  be  unable  to  call 
aloud,  and  in  the  peace  of  God  and  of  the  people  of  the  state  of 
Illinois  then  and  there  also  being,  unlawfully  did  make  an 
assault,  and  then  and  there  forced  and  threw  the  said  A.  from 
a  certain  wagon,  in  which  the  said  A.  then  and  there  was,  to 
and  upon  the  ground,  the  said  ground  then  and  there  being 
frozen  and  very  cold,  and  then  and  there  did  force  and  compel 
the  said  A.  (so  being  such  deformed  person  as  aforesaid,  and 
also,  by  reason  of  his  being  such  deformed  person,  being  unable 
to  move  himself  from  place  to  place  as  aforesaid,  and  also  being 
defi.cient  in  voice,  so  as  to  be  unable  to  call  aloud  as  aforesaid) 
then  and  there  to  lie  upon  the  ground,  so  being  frozen  and  very 
cold  as  aforesaid,  and  then  and  there  did  abandon  and  leave  him 
the  said  A.,  lying  on  the  ground  as  aforesaid,  to  the  great  pain 
and  torture  of  the   said   A.,  and   to   the  great   damage   and 

{p)  Nixon  V.  People,  2  Scam.  267.  On  this  case  Browne,  J.,  said:  "This 
was  an  indictment  to  commit  murder,  upon  which  Nixon  was  tried  at  the  last 
April  term  of  the  White  Circuit  Court,  and  found  guilty  ;  and  a  motion  made  in 
an-est  of  judgment,  which  was  overruled. 

"The  errors  assigned  bring  into  full  view  such  parts  of  the  record  as  recjuire 
particular  attention  from  the  court,  and  are  as  follows  :  1.  The  facts  set  forth  in 
the  indictment  below  do  not  constitute  the  offence  with  which  said  Nixon  was 
charged.  2.  The  indictment  does  not  sufficiently  describe  the  jjlace  where  Adam 
was  abandoned,  so  as  to  show  that  death  would  jjrobably  have  been  caused  by 
such  abandonment.  3.  The  indictment  does  not  sufficiently  set  forth  the  means 
by  which  the  offence  charged  was  committed.  4.  The  court  erred  in  refusing  the 
motion  for  a  new  trial. 

"This  indictment  was  brought  under  a  statute  of  this  State  (R.  L.  180,  §  52  ; 
Gale's  Stat.  206),  which  provides,  that  an  assault  with  an  intent  to  commit  mur- 
der shall  subject  the  offender  to  confinement  in  the  penitentiary  for  a  term  not 
less  than  one  year,  nor  more  than  fourteen  years.  This  indictment  has  every 
ingredient  necessary  to  constitute  a  good  one,  under  this  statute.  The  offence  is 
well  set  out.  There  may  be  a  thousand  forms  of  deaths  by  which  human  nature 
may  be  overcome,  by  poisoning,  starving,  drowning,  etc.  This  differs  from  most 
cases  of  assault  with  intent  to  commit  murder ;  it  is  more  malignant,  and  dis- 
covers more  depravity.  But  if  one  assault  with  intent  to  commit  murder  differs 
from  another,  it  makes  it  no  less  a  crime.  This  one  seems  to  be  of  a  very  atro- 
cious character." 

250 


ASSAULTS.  (231) 

impoverishment  of  his  health  and  strength  of  body,  with 
intent  him  the  said  A.,  by  the  means  aforesaid,  then  and  there 
feloniously,  wilfully,  and  of  his  malice  aforethought,  to  kill 
and  murder,  and  other  wrongs  to  him  the  said  A.  then  and 
there  did,  to  the  great  damage  of  him  the  said  A.,  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(229)  For  throwing  corrosive  fluid ^  with  intent^  etc.{q) 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.,  late  of 
B.,  in  the  county  of  S.,  laborer,  on  the  first  day  of  June,  in  the 
year  of  our  Lord  with  force  and  arms,  at  B.  aforesaid,  in 

the  county  aforesaid,  in  and  upon  one  A.  B.  did  make  an  as- 
sault, and  then  and  there  unlawfully  and  maliciously  did  cast 
and  throw  upon  the  said  A.  B.  a  certain  corrosive  fluid,  to  wit, 
one  pint  of  oil  of  vitriol,  with  intent  in  so  doing,  then  and 
there  and  thereby  the  said  A.  B.  to  burn,  and  the  said  A.  B. 
thereby  then  and  there  did  grievously  burn,  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(230)  [See  for  '-'■  Assaults  with  intent^'^  etc.,  infra,  242  et  seq.,  1046 

et  seq.'] 

(231)  Assault  with  beating  and  wounding  on  the  high  seas. 

The  jurors  of  the  said  United  States,  within  and  for  the  said 
district,  upon  their  oath  present,  that  C.  W.  C,  mariner,  and  C. 
G.  A.,  both  late  of  Nantucket,  in  said  district,  on,  etc.,  in  and 
on  board  of  a  certain  ship  or  vessel  called  the  "J.  M."  then 
lying  within  the  jurisdiction  of  a  foreign  state  or  sovereign,  to 
wit,  in  the  port  of  Paita,  in  Peru,  the  said  "  J.  M."  then  and 
there  being  an  American  ship  or  vessel  belonging  to  certain  per- 
sons, citizens  of  the  United  States,  whose  names  to  the  jurors 
aforesaid  are  as  yet  unknown,  with  force  and  arms,  an  assault 
did  make  in  and  upon  one  T.  B.,  and  him  the  said  B.  then  and 
there,  from  malice,  hatred,  and  revenge,  and  without  justifiable 
cause,  did  beat  and  wound,  he  the  said  C  then  and  there  being 
the  chief  mate  of  said  ship  or  vessel,  he  the  said  A.  then  and 
there  being  the  third  mate  of  said  ship  or  vessel,  and  he  the 

{q)  Archbold's  C.  P.  (ed.  1853),  537.  This  is  good  at  cominon  law.  See 
also  R.  V.  Crawford,  1  Den.  C.  C.  100,  2  C.  &  K.  129,  for  assault  hy  throwing 
of  boiling  water. 

251 


(232)  OFFENCES   AGAINST   THE   PERSON. 

said  B.  then  and  there  being  one  of  the  crew  thereof,  against, 
etc.,  and  contrary,  etc.     {Conclude  as  in  book  1,  chapter  8.) 

(232)  Assault  on  high  seas,  by  binding  the  prosecutor  and  forcing 
an  iron  bolt  dow?i  his  throat. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  said  C.  W.  C.  and  C.  G.  A.,  both  late  of  Nan- 
tucket, in  said  district,  on,  etc.,  in  and  on  board  of  a  certain 
ship  or  vessel,  called,  etc.,  then  lying  within  the  jurisdiction  of 
a  foreign  state  or  sovereign,  to  wit,  in  the  port  of  Paita,  in  Peru, 
the  said  "J.  M."  then  and  there  being  an  American  ship  or  ves- 
sel belonging  to  certain  persons,  citizens  of  the  United  States, 
whose  names  to  the  jurors  aforesaid  are  as  yet  unknown,  with 
force  and  arms,  an  assault  did  make  in  and  upon  one  T.  B.,  and 
him  the  said  B.  then  and  there,  from  malice,  hatred,  and  re- 
venge, and  without  justifiable  cause,  did  bind  and  imprison, 
and,  being  so  bound  and  imprisoned,  did  force  into  the  mouth 
and  between  the  teeth  of  him  the  said  B.,  with  great  force  and 
violence,  an  iron  bolt  called  a  pump  bolt,  and  the  same  bolt  did 
then  and  there  bind  and  tie  in  the  mouth  and  between  the 
teeth  of  him  the  said  B.,  and  by  the  said  forcing  of  the  said 
bolt  into  the  mouth  and  between  the  teeth  of  said  B.  did  bruise 
and  lacerate  the  lips  and  gums  of  said  B.,  which  said  forcing  of 
said  bolt  into  the  mouth  and  between  the  teeth  of  said  B., 
and  so  binding  and  tying  the  same  therein,  was  a  cruel  and 
unusual  punishment ;  he  the  said  B.  then  and  there  being  one  of 
the  crew  of  the  said  ship,  and  they  the  said  C.  W.  C.  and  C.  G 
A.  being  officers  thereof,  to  wit,  the  said  C.  being  then  and 
there  the  first  mate,  and  the  said  A.  being  then  and  there  third 
mate  of  said  ship ;  against,  etc.,  and  contrary,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  afterwards,  to  wnt,  on,  etc.,  the  said  C.  W.  C.  and 
C.  G.  A.  were  first  apprehended  in  said  district  of  Massachu- 
setts, to  wit,  at  Boston,  which  was  the  district  in  which  the  said 
0.  and  A.  were  first  apprehended  after  the  commission  of  the 
offence  aforesaid. (r) 

(r)   See  infra,  925  et  seq.,  for  further  forms  on  this  head. 

252 


ASSAULTS.  (-35) 

(233)  Stabbing  with  intent  to  wound,  under  Ohio  stut.  j).  49,  §  6. 

That  A.  B.,  on  the  nineteenth  day  of  August,  in  the  3'ear  of 
our  Lord  one  thousand  eight  hundred  and  fifty,  in  the  county 
of  Hamilton' aforesaid,  in  and  upon  one  M.  N.,  then  and  there 
being,  did  unlawfully  and  maliciously  make  an  assault,  and 
with  a  certain  knife,  which  he,  the  said  A.  B.,  then  and  there 
in  his  right  hand  had  and  held,  him,  the  said  M.  N.,  did  then 
and  there  unlawfully  and  maliciously  stab,  thereby,  then  and 
there,  giving  to  him,  the  said  M.  IST.,  in  and  upon  the  right 
shoulder  of  him,  the  said  M.  N.,  one  wound,  of  the  length  of 
one  inch,  and  of  the  depth  of  two  inches,  with  intent  then  and 
there  him,  the  said  M.  N^.,  maliciously  to  wound,  contrary,  etc. 
{Conclude  as  in  book  1,  chapter  3.)(s) 

(234)  Shooting  with  intent  to  wound  under  Ohio  stat.  p.  49,  §  6. 

That  A.  B.,  on  the  twenty-second  day  of  June,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  iifty-three,  in  the 
county  of  Licking  aforesaid,  with  a  certain  pistol,  then  and 
there,  loaded  with  gunpowder  and  other  destructive  materials, 
which  said  pistol  he,  the  said  A.  B.,  then  and  there  in  his  right 
hand  had  and  held,  at  and  against  a  certain  person  to  the  depo- 
nent [or  Jurors,  as  the  case  mag  be]  aforesaid  unknown,  then  and 
there  feloniously  and  maliciously  did  shoot,  with  intent  then 
and  there  and  thereby,  feloniously  and  maliciously,  the  said  per- 
son to  the  deponent  unknown  to  wound,  contrary,  etc.  {Conclude 
as  in  book  1,  chapter  3.)(^) 

(235)  Assault  on  high  seas  with  dangerous  weajjon. 

That  late  of  the  city  and  county  of  iN'ew  York,  in  the 

district  aforesaid  {state  occupation),  heretofore,  on,  etc.,  with  force 
and  arms,  on  the  high  seas,  out  of  the  jurisdiction  of  any  par- 
ticular state  of  the  said  United  States  of  America,  on  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the  said  United 
States,  and  within  the  jurisdiction  of  this  court,  in  and  on  board 
of  a  certain  American  vessel,  being  a  called  the  be- 

longing in  whole  or  in  part  to  a  citizen  or  citizens  of  the  said 

(s)  Warren's  C.  L.  54.  (t)  Warren's  C.  L.  56. 

255 


(235)  OFFENCES    AGAINST   THE   PERSON. 

United  States,  whose  name  or  names  are  to  the  said  jurors 
unknown,  with  a  dangerous  weapon,  to  wit,  with  a  {state  par- 
ticularly  the  iveapoji  and  dimensions  of  the  same),  in  and  upon  one 
in  the  peace  of  God  and  of  the  said  United  States,  then 
and  there  being  in  and  on  board  of  said  called  the 

feloniously  did  commit  an  assault,  to  the  great  damage  of  the 
said  against,  etc.,  and  against,  etc.     {Conclude  as  in  book  1, 

chapter  3.) 

Second  count. 

That  the  said  heretofore,  on,  etc.,  in  and  on  board  of  a 

certain  American  vessel,  being  a  called  the  then  and 

there  belonging  and  appertaining  to  a  certain  person  or  persons, 
then  and  still  being  a  citizen  or  citizens  of  the  said  United  States, 
whose  name  or  names  are  to  the  said  jurors  unknown,  with  force 
and  arms,  on  the  high  seas,  in  and  on  board  said  out  of  the 

jurisdiction  of  any  particular  state  of  the  said  United  States,  on 
waters  within  the  admiralty  and  maritine  jurisdiction  of  the 
said  United  States,  and  within  the  jurisdiction  of  this  court, 
with  a  dangerous  weapon,  to  wit,  with  a  {repeat  description  and 
diinensions  as  in  first  count),  in  and  upon  one  belonging  to 

the  company  of  said  vessel,  being  a  called  the  in  the 

peace  of  God  and  of  the  said  United  States,  then  and  there  being 
feloniously  did  make  an  assault,  he  the  said  being 

one  of  the  company  of  the  said  to  the  great  damage  of  the 

said  against,  etc.,  and  against,  etc.     {Conclude  as  in  book  1, 

chapter  3.) 

Third  count. 

Like  second  count,  inserting  afiter  "  being  one  of  the  company 
of  the  said  ,"  and  before  "  to  the  great  damage  of  the  said 

,"  "  and  other  wrongs  to  the  said  then  and  there 

did." 

Last  comit. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  Southern  District  of  New  York  {or  otherwise), 
in  the  Second  Circuit,  is  the  district  and  circuit  in  which  the 
said  was  first  apprehended  for  the  said  offence. 

254 


ASSAULTS.  (236) 

(236)  Another  form  for  same. 

That  late  of  the  city  and  county  of  I^ew  York,  in  the 

circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  etc., 

with  force  and  arms,  on  the  high  seas  [or^  as  the  case  may  be),  on 
waters  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States  of  America,  out  of  the  jurisdiction  of  any  par- 
ticular state  of  the  said  United  States,  and  within  the  jurisdic- 
tion of  this  court,  in  and  on  board  of  a  certain  vessel,  being  a 
called  the  belonging  and  appertaining  to  a  certain 

person  or  persons,  whose  names  are  to  the  said  jurors  unknown, 
then  and  still  being  a  citizen  or  citizens  of  the  United  States  of 
America,  with   a  dangerous  weapon,  called  a  {describe  the 

dimejisions),  in  and  upon  one  in  the  peace  of  God  and  of 

the  said  United  States,  then  and  there  being,  feloniously  did 
make  an  assault,  and  other  wrongs  to  the  said  then  and 

there  did,  to  the  great  damage  of  the  said  against,  etc., 

and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

That  the  said  late  of  the  city  and  county  of  New  York, 

in  the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on, 

etc.,  with  force  and  arms,  on  the  high  seas,  on  waters  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States  of 
America,  out  of  the  jurisdiction  of  any  particular  state  of  the 
said  United  States,  and  within  the  jurisdiction  of  this  court,  in 
and  on  board  of  a  certain  vessel,  being  a  called  the 

belonging  and  appertaining  to  a  certain  person  or  persons,  whose 
names  are  to  the  said  jurors  unknown,  then  and  still  being  a 
citizen  or  citizens  of  the  United  States  of  America,  with  a  dan- 
gerous weapon,  called  a  {describe  as  before),  in  and  upon 
one  in  the  peace  of  God  and  of  the  said  United  States, 
then  and  there  being,  and  also  then  and  there  being  master  {or 
otherwise)  of  the  said  vessel,  being  a  called  the  felo- 
niously did  make  an  assault,  and  other  wrongs  to  the  said 
then  and  there  did,  to  the  great  damage  of  the  said  against, 
etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

255 


(239)  OFFENCES   AGAINST    THE    PERSON. 

Last  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  Southern  District  of  New  York,  in  the  Second 
Circuit,  is  the  circuit  and  district  into  wliich  the  said  was 

first  brought, and  in  which  he  was  first  apprehended  for  the  said 
ofi'ence. 

(237)   The  same,  in  a  foreign  port,  the  weapon  being  a  Spanish  knife. 

That  heretofore,  to  wit,  on,  etc.,  on  board  of  a  certain  vessel, 
to  wit,  the  brig  "  Volta,"  belonging  to  a  citizen  and  citizens  of 
the  United  States,  whose  name  or  names  are  to  this  inquest  un- 
known, while  lying  in  a  port,  to  wit,  the  port  of  Rio  de  Janeiro, 
within  the  jurisdiction  of  a  foreign  state,  to  wit,  of  Brazil,  to  wit, 
at  the  Eastern  District  of  Pennsylvania  aforesaid,  and  within  the 
jurisdiction  of  this  court,  a  person,  to  wit,  one  S.  T.,  then  and 
there  being  a  person  belonging  to  the  company  of  the  said  ves- 
sel, did  then  and  there,  with  a  dangerous  weapon,  to  wit,  a 
Spanish  knife,  commit  an  assault  on  another  person,  to  wit,  one 
W.  A.  R.,  then  and  there  belonging  to  the  company  of  the  said 
vessel,  and  other  wrongs  to  him  the  said  W.  A.  R.,  he  the  said 
S.  T.,  then  and  there  unlawfully,  violently,  and  maliciously  did, 
to  the  great  damage  of  him  the  said  W.  A.  R.,  contrary,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(238)  Second  count,  same  as  first,  chaining  the  instrument  as 

follows : — 

"With  a  dangerous  weapon,  to  wit,  a  sharp  cutting  instru- 
ment." 

(239)  Third  count.     Assault  with  intent  to  kill. 

That  at,  etc.,  on,  etc.,  on  board  of  a  certain  vessel,  to  wit,  the 
brig  "  Volta,"  belonging  to  a  citizen  and  citizens  of  the  United 
States,  while  lying  in  a  port,  to  wit,  the  port  of  Rio  de  Janeiro, 
within  the  jurisdiction  of  a  foreign  state,  to  wit,  of  Brazil,  to 
wit,  at  the  Eastern  District  of  Pennsylvania  aforesaid,  and  within 
the  jurisdiction  of  the  court  aforesaid,  a  person,  to  wit,  one  S,  T., 
then  and  there  being  a  person  belonging  to  the  company  of  the 
said  vessel,  did  then  and  there,  with  intent  to  kill  a  person,  to 
256 


ASSAULTS.  (240) 

wit,  one  W.  A.  R.,  then  and  there  belonging  to  the  company  of 
the  said  vessel,  did  then  and  there  commit  an  assault  on  the  said 
W.  A.  R.,  then  and  there  belonging  to  the  company  of  said  ves- 
sel as  aforesaid,  and  other  wrongs  to  him  the  said  W.  A.  R.,  he 
the  said  S.  T.,  then  and  there  unlawfully,  violently,  wickedly, 
and  maliciously  did,  to  the  great  damage  of  him  the  said  W.  A. 
R.,  contrary,  etc.,  and  against,  etc.  {Conclude  as  in  hook  1,  chap- 
ter 3.) 

{Final  count  as  17, 18,  171.)  {u) 

(240)  Assault  and  false  imprisonmejit  at  coynmon  law.{v) 

That  J.  S.,  late  of  the  parish  of  B.,  in  the  county  of  M., 
laborer,  on,  etc.,  with  force  and  arms,  at  the  parish  aforesaid,  in 
the  county  aforesaid,  in  and  upon  one  J.  N".,  in  the  peace  of  God 
and  of  the  said  state,  then  and  there  being,  did  make  an  assault, 
and  him  the  said  J.  N.,  then  and  there  unlawfully  and  injuri- 
ously, and  against  the  will  of  the  said  J.  N.,  and  also  against 
the  laws  of  this  state,  and  without  any  legal  warrant,  authority, 
or  reasonable  or  justifiable  cause  whatsoever,  did  imprison,  and 
detain  so  imprisoned  there,  for  a  long  space  of  time,  to  wit,  for 
the  space  of  ten  hours  then  next  following,*  and  other  wrongs 

(tf)  In  17  and  18  the  final  counts  are  given  in  cases  where  the  offender  was 
either  first  brought  or  first  apprehended  within  the  particular  district  in  which 
the  indictment  is  found.  These  counts,  one  of  which  is  necessary  in  all  cases 
where  the  offence  was  committed  within  mere  admiralty  jurisdiction,  are  varied 
in  phraseology  in  the  several  circuits,  and  would  seem,  in  fact,  with  their  several 
modifications,  to  be  used  indiscriminately  in  cases  where  the  offender  is  either 
first  brought  or  first  apprehended,  etc.  The  following  forms,  in  addition  to  those 
in  the  text,  are  of  frequent  occurrence: — 

That  afterwards,  to  wit,  etc.,  the  said  A.  B.  was  first  brought  into  S.  in  said 
district,  and  that  the  said  district  of  M.  is  the  district  into  which  he  was  first 
brought  after  committing  the  offence  aforesaid. 

That  the  southern  district  of  New  York  is  the  district  in  which  the  said  A.  B. 
was  first  brought  and  apprehended  for  the  said  offence. 

That  the  said  A.  B.,  etc.,  after  the  commission  of  the  said  offence,  to  wit,  on, 
etc.,  was  first  brought  into  the  said  M.  district,  and  that  the  said  M.  is  the  district 
into  which  the  said  offender  was  first  brouglit  as  aforesaid.     Davis's  Prec.  224. 

That  the  said  C,  D.,  the  offender  aforesaid,  was  first  brought  into  B.  aforesaid, 
in  the  district  of  after  the  commission  of  said  offence,  and  that  the  said 

district  of  is  the  district  into  which  he  was  first  brought.     Lewis's  C.  L. 

645. 

See,  for  other  forms  of  same,  177,  178,  179,  180. 

Where  the  offender  is  out  of  the  jurisdiction,  and  the  bill  is  found  for  the  pur- 
pose of  issuing  a  bench  warrant,  of  course  the  final  count  is  to  be  omitted. 

(y)  Arch.  C.  P.  5th  Am.  ed.  558. 

VOL.  I.— 17  257 


(242)  OFFENCES  AGAINST  THE  PERSON. 

to  the  said  J.  "N".  then  and  there  did,  to  the  great  damage  of  the 
said  J.  N.,  and  against,  etc.  {If  any  money  were  extorted  from  the 
prosecutor  for  setting  him  at  liberty^  add  an  averment  of  it  immediately 
after  the  above  asterisk,  as  thus) :  And  until  he  the  said  J.  N.  had 
paid  to  the  said  J.  S.  the  sum  of  five  dollars  of  the  moneys  of 
the  said  J.  ]^.,  for  his  enlargement;  and  other  wrongs,  etc. 
{Add  a  count  for  a  caramon  assault.) 

(241)  Assault  and  false  imprisonment,  with  the  obtaining  of  five 
dollars.  {If  there  be  no  extortion,  the  averment  in  brackets 
can  be  omiited.){w) 

That  A.  B.,  of,  etc.,  on,  etc.,  at,  etc.,  with  force  and  arms,  in 
and  upon  one  E.  F.  did  make  an  assault,  and  him  the  said  E.  F. 
then  and  there  unlawfully  and  injuriously,  and  against  the  will 
and  without  the  consent  of  the  said  E.  F.,  and  also  against  the 
laws  of  this  state,  without  any  legal  warrant,  authority,  or  justi- 
fiable cause  whatsoever,  did  imprison  and  detain  for  a  long  time, 
to  wit,  for  the  space  of  hours  then   next  following  [and 

until  he  the  said  E.  F.  had  paid  to  him  the  said  A.  B.  the  sura 
of  five  dollars,  lawful  money  of  the  United  States,  of  the  moneys 
of  the  said  E.  F.,  for  his  enlargement],  and  other  wrongs  to  the 
said  E.  F.  then  and  there  did,  to  the  great  damage  of  the  said 
E.  F.,  against,  etc.  (^If  a  note  was  obtained  instead  of  a  sum  of 
money,  insert  instead  of  the  above  passage  in  brackets) :  And  until 
he  the  said  E.  F.,  for  his  delivery  from  the  said  imprisonment, 
had  signed  and  given  to  the  said  A.  B.  a  note  under  the  hand 
of  the  said  E.  F.,  whereby  he  the  said  E.  F.  promised  to  pay  to 
the  said  A,  B.  the  sum  of  ten  dollars,  etc. 

(242)  Assault  with  intent  to  commit  murder  or  other  felony 
at  common  law.{x) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  with  a  certain  drawn  sword, 
which  he  the  said  A.  B.  in  his  right  hand  then  and  there  had 

(hO  Stark.  C.  P.  428. 

[x)  Where  an  assault  is  duly  averred,  then  the  intent  with  which  this  assault 
was  committed  is  matter  of  surplusajje,  and  need  not  be  proved  in  order  to  secure 
a  conviction  of  the  assault.  R.  v.  Higgins,  2  East,  5;  though  see  R.  v.  Marsh, 
1  Den.  C.  C.  505;  Wh.  Cr.  L.  8th  ed.  §  637.  Even  an  assault  with  intent 
need  not  specify  the  facts  necessary  to  constitute  an  offence  whose  actual  and 
complete  shape  was  not  at  the  time  matured.  Thus  an  indictment  for  an  assault 
with  an  intent  to  steal  from  the  pocket,  without  stating  the  goods  or  money  in- 

258 


ASSAULTS.  (243) 

and  held,  in  and  upon  one  S.  W.  did  feloniously,  wilfully,  and 
of  his  malice  aforethought,(?/)  with  an  intent  him  the  said  S.{z) 
then  and  there,  feloniously,  wilfully,  and  of  his  malice  afore- 
thought,((7)  to  kill  and  murder,(6)  and  other  wrongs  to  the  said 
S.  W.  then  and  there  did,  against,  etc.{c) 

(243)  Another  form  for  same  ^  in  New  Yorh. 
That  at  on,  etc.,  with  force  and  arms,  to  wit,  with 

knives,  hatchets,  and  tomahawks,  in  and  upon  one  E.  G.,  of 
etc.,  in  the  peace  of  the  people,  then  and  there  being,  did  make 

tended  to  be  stolen,  is  good.  Com.  v.  Rogers,  5  S.  &  R.  463  ;  Wh.  Cr.  L.  8th 
ed.  §  63  7.  Nor  is  it  necessary  to  aver  that  the  prosecutor  had  anything  in  his 
pocket  to  be  stolen.  Com.  v.  McDonald,  5  Cush.  365.  See  Com.  v.  Doherty, 
10  Cush.  52.  Dickerson  v.  Com.,  2  Bush,  1  ;  Taylor?'.  Com.,  3  Bush,  508.  In 
an  indictment,  also,  for  an  assault  with  intent  to  murder,  it  is  not  necessary  to 
state  the  instrument  or  means  made  use  of  by  the  assailant  to  effectuate  the 
murderous  intent.  U.  S.  v.  Herbert,  5  Cranch  C.  C.  87  ;  State  v.  Daley,  41 
Vt.  564  ;  State  v.  Dent,  3  Gill  &  John.  8  ;  Rice  v.  People,  15  Mich.  9  ;  Kilkelly 
V.  State,  43  AVis.  604;  but  see  State  v.  Johnson,  11  Tex.  22;  State  v.  Jordan, 
19  Mo.  213;  Trexler  v.  State,  19  Ala.  21;  State  v.  Chandler,  24  Mo.  371; 
State  V.  Hubbs,  58  Ind.  415.  See  fully  AVh.  Cr.  L.  8th  ed.  §  644.  The  ques- 
tion, it  is  to  be  observed,  depends  on  the  statute  constituting  the  offence.  See 
State  /'.  Munch,  22  JNlinn.  67.  In  an  indictment  for  breaking  and  entering  a 
dwelling-house,  with  intent  to  commit  a  rape,  it  need  not  be  alleged  that  the  de- 
fendant "then  and  there"  intended  to  commit  the  rape,  nor  need  the  offence  of 
rape  be  fully  and  technically  set  forth.  Com.  v.  Doherty,  10  Cush.  52.  The 
means  of  efi'ecting  the  criminal  intent,  and  the  circumstances  evincive  of  the  design 
with  which  the  act  was  done,  are  considered  to  be  matters  of  evidence  to  the 
jury  to  demonstrate  the  intent,  and  not  necessary  to  be  incorporated  in  an  indict- 
ment (Mackesey  v.  People,  6  Park.  C.  R.  114;  State  v.  Dent,  3  Gill  &  J.  8  ; 
approved  in  U.  S.  v.  Simmons,  96  U.  S.  360  ;  citing  also  U.  S.  v.  Gooding,  12 
Wheat.  473;  U.  S.  u.  Ulriel,  3  Dillon,  535);  though  when  an  attempt  is 
averred,  it  is  necessary  that  some  act  constituting  such  attempt  [e.  g.  an  assault) 
should  be  laid.  Randolph  v.  Com.,  6  S.  &  R.  398;  Clark's  case,  6  Grat.  675. 
See  State  v.  AVilson,  30  Conn.  503.  See,  as  tending  to  a  laxer  view,  U.  S.  v. 
Simmons,  96  U.  S.  3G0;  People  v.  Bush,  4  Hill  N.  Y.  132.  As  to  precision 
necessary  in  indictments  for  attempts,  etc.,  see  Wh.  Cr.  L.  8th  ed.  §§  173  et  seq., 
190.  The  attempt  is  not  pe?-  se  indictable,  and  needs  extraneous  facts  to  make 
it  the  subject  of  an  indictment,  while  it  is  othei-wise  with  an  assault.  In  such 
cases  the  term  feloniously  must  ordinarily  be  used  when  the  object  is  felonious. 

(y)  As  to  repetition  of  these  terms  see  Wh.  Cr.  L.  8th  ed.  §  260;  State  v. 
Howell,  Ga.  Dec.  Pt.  I.  158  ;  State  v.  Wilson,  7  Ind.  516  ;  U.  S.  v.  Gallagher, 
2  Paine,  C.  C.  447. 

[z)  This  repetition  of  the  name  of  the  injured  joarty  is  necessary.  State  v. 
Patrick,  3  Wis.  812. 

(rt)  This  is  generallj'  necessary.  State  v.  Harris,  34  Mis.  347  ;  State  v.  Davis, 
26  Tex.  201  ;  People  v.  English,  30  Cal.  214  ;  People  v.  Congleton,  44  Cal.  92  ; 
see  State  v.  Phinney,  42  Me.  384.  See  State  v.  Murphy,  21  Ind.  441.  The 
word  "unlawfully"  may  be  omitted,     lb. 

[b)  "To  commit  manslaughter"  is  here  inadequate.  Bradley  v.  State,  10  S. 
&  M.  618. 

(c)  For  assault  with  intent  to  kill,  in  the  United  States  courts,  see  supra,  239. 

259 


(244)  OFFENCES  AGAINST  THE  PERSON. 

an  assault,  and  with  intent  to  commit  murder  on  the  said  E.  G., 
did  then  and  there  cut,  beat,  strike,  wound,  and  evil  treat  him 
the  said  E.  G.,  and  other  wrongs  to  the  said  E.  G.  then  and 
there  did,  to  the  damage  of  the  said  E.  G.,  and  against,  eto.{d) 
{Conclude  as  in  hook  1,  chapter  3.) 

(244)  Assault  with  intent  to  drown.{e) 

That  A.  B,,  of  in  the  county  of  laborer,  on 

with  force  and  arms,  at  in   the  county  aforesaid,  in  and 

upon  the  body  of  one  C.  D.,  with  a  dangerous  weapon,  to  wit, 
with  a  large  stick,  which  he  the  said  A,  B.  in  both  his  hands 
then  and  there  had  and  held,  did  make  an  assault,  and  him  the 
said  C.  D.  did  then  and  there  beat,  wound,  and  abuse ;  and  that 
he  the  said  A.  B.,  with  both  his  hands,  did  then  and  there  un- 
lawfully, violently,  and  maliciously  cast,  push,  and  throw  the 
said  C.  D.  into  a  certain  pond  there  situate  and  being,  wherein 
there  was  a  large  quantity  of  water,  and  did  then  and  there 
keep,  press  down,  and  confine  the  said  C.  D.  in  and  under  the 
said  water  for  the  space  of  five  minutes,  with  intention  him  the 
said  C.  D.  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought,  to  suffocate  and  drown  in  the  said  water ;  and 
him  the  said  C.  D.,  by  means  thereof,  wilfully,  feloniously,  and 
of  his  malice  aforethought,  to  kill  and  murder ;  and  other 
wrongs  to  the  said  C.  D.  then  and  there  did,  to  the  great 
damage  of  him  the  said  C.  D.,  against,  etc.  {Conclude  as  in 
book  1,  chapter  3.) 

{d)  People  V.  Pettit,  3  Johns.  R.  511.  This  indictment  was  attacked,  1st, 
because  it  did  not  charge  the  offence  to  have  been  committed  feloniously  ;  2d, 
because  the  instruments  were  not  accurately  described ;  and  3d,  because  the 
intent  was  not  set  out  with  sufficient  precision.  "Per  curiam:  The  intent  to 
commit  murder  was  here  charged  in  the  words  of  the  statute,  and  wc  think  that 
was  sufficient.  The  indictment  is  for  an  assault  and  battery,  and  the  quo  animo 
is  to  be  collected  from  the  circumstances.  It  was  enough  to  state,  with  the  usual 
precision,  the  facts  requisite  to  constitute  an  assault  and  battery,  and  to  aver  the 
intent  with  which  it  was  made.  The  indictment  recjuired  no  other  facts  than 
were  necessary  to  establish  an  assault  and  battery.  The  crime  charged  was, 
after  all,  but  a  misdemeanor.  It  was  not  a  felony,  though  the  intent  was  to  com- 
mit one."  This  indictment,  however,  is  defective  at  common  law,  and  only  good 
when  sustained  by  local  statute.     See  243  and  notes. 

(e)  Davis's  Prec.  6G. 

260 


ASSAULTS.  (247) 

(245)  Assault  with  intent  to  murder,  under  the  New  York  Rev.  Stat. 

That  E.  L.,  late  of  the  First  Ward  of  the  city  of  New  York, 
in  the  county  of  New  York  aforesaid,  hiborer,  on  the  day 

of  in  the  year,  etc.,  with  force  and  arms,  at  the  ward, 

city,  and  county  aforesaid,  in  and  upon  N.  J.,  then  and  there 
being,  feloniously  did  make  an  assault,  and  him  the  said  N.  J., 
with  a  certain  knife,  which  the  said  E.  L.  in  his  right  hand 
then  and  there  had  and  held  (the  said  knife  being  a  deadly 
weapon),  feloniously  did  beat,  strike,  cut,  and  wound, 

with  intent  him  the  said  N.  J.  then  and  there  feloniously  and 
wilfully  to  kill,  and  other  wrongs  to  the  said  N.  J.  then  and 
there  did,  to  the  great  damage  of  the  said  E".  J. ;  against,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(246)  Second  count.     With  intent  to  maim. 
That  the  said  E.  L.,  on  the  said  day  of  in  the  year 

last  aforesaid,  with  force  and  arms,  at  the  ward,  city,  and  county 
aforesaid,  in  and  upon  the  said  N.  J.,  then  and  there  being, 
feloniously  did  make  another  assault,  and  him  the  said  N.  J., 
with  a  certain  knife,  which  he  the  said  E.  L.  in  his  right  hand 
then  and  there  had  and  held,  the  said  knife  being  a  deadly 
weapon,  feloniously  did  beat,  strike,  cut,  and  wound,  with 

intent  him  the  said  N.  J.  then  and  there  feloniously  and  wilfully 
to  maim,  against,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(247)  Assault  with  intent  to  commit  a  felony  generally.{f) 

That  A.  B.,  etc.,  at,  etc.,  aforesaid,  in  and  upon  one  J.  JST.,  in 
the  peace  of  God  and  of  our  lady  the  queen,  then  and  there  be- 
ing, unlawfully  did  make  an  assault,  and  him  the  said  J.  N.  then 
and  there  did  beat,  wound,  and  ill-treat,  [with  intent(^)  {here  state 

(/)  This  form  is  given  by  Mr.  Archbold,  C.  P.  5th  Am.  ed.  544,  as  good  un- 
der tlie  Stat.  9  Geo.  IV.  c.  31,  s.  25,  which  enacts,  that  any  person  who  shall  be 
convicted  "  of  any  assault  to  commit  felony,"  shall  be  punished,  etc.  As  will  be 
seent)y  a  comparison  of  this  statute  with  that  in  New  York  (2  Rev.  Stat.  665, 
666,  §  39),  the  indictment  in  the  text  will  be  good  in  that  state  in  the  particular 
cases  provided  for.  As  a  rule,  it  is  enough  to  state  the  intent  generally.  See 
notes  to  242. 

(^r)  If  necessary  the  intent  and  all  that  follows  in  brackets  may  be  discharged 
as  surplusage.  Wh.  Cr.  L.  8th  ed.  §§  G41a,  645  ;  Wh.  Cr.  PI.  &  Pr.  §§  249,  251, 
and  cases  cited. 

261 


(248a)  OFFENCES    AGAINST    THE    PERSON. 

the  felony  intended  thus):  him  the  said  J.  K  then  and  there  felo- 
niously, wilfully,  and  of  his  malice  aforethought,  to  kill  and 
murder,]  and  other  wrongs  to  the  said  J.  IST.  then  and  there  did, 
to  the  great  damage  of  said  J.  lis".  ;  against  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against,  etc.  {Add 
a  count  for  common  assault.) 

(248)  Felonious  assault  under  the  Massachusetts  statute.{h) 

That  A.  B.,  of  B.  aforesaid,  yeoman,  on,  etc.,  at  B.  aforesaid, 
with  force  and  arras,  the  said  A.  B.  then  and  there  being  armed 
with  a  dangerous  weapon,  to  wit,  a  sword,  in  and  upon  one  E. 
F.,  then  and  there,  in  the  peace  of  said  commonwealth  being, 
feloniously,  wilfully,  and  of  his  malice  aforethought,  an  assault 
did  make,  with  intent  him  the  said  E.  F.  to,  etc.,  and  by  so  do- 
ing, and  by  force  of  the  statute  in  such  case  made  and  provided, 
he  the  said  A.  B.  is  deemed  a  felonious  assaulter.  And  so  the 
jurors  aforesaid,  on  their  oath  aforesaid,  do  say  and  present,  that 
the  said  A.  B.,  at  B.  aforesaid,  on,  etc.,  with  force  and  arms,  felo- 
niously assaulted  the  said  E.  F.,  in  manner  and  form  aforesaid, 
against,  etc.,  and  contrary,  etc.  {Conclude  as  in  booh  1,  chapter  3.) 

(248a)  Assault  with  intent  to  murder  with  -pistol,  under  Massachusetts 

statute. 

* 

That  H.  M.  F.,  etc.,  on,  etc.,  at,  etc.,  in  and  upon  one  J.  B. 
H.,  with  a  certain  dangerous  weapon,  to  wit,  with  a  pistol, 
then  and  there  loaded  with  powder  and  leaden  ball,  with  which 
dangerous  weapon  the  said  H.  M.  F.  was  then  and  there  armed, 
feloniously,  wilfully,  and  of  his  malice  aforethought  did  make 
an  assault,  with  intent  the  said  J.  B.  H.  then  and  there,  with 
the  pistol  aforesaid,  feloniously,  wilfully,  and  of  his  malice 
aforethought  to  kill  and  murder. (^■) 

(/;)  An  assault  with  an  intent  to  murder  was  not  a  felony  under  the  statute, 
and  consequently  the  word  "feloniously"  should  not  be  admitted,  and  this 
though  the  statute  provides  that  the  defendant  shall  be  deemed  a  felonious  as- 
saulter. Com.  V.  Barlow,  4  Mass.  439.  It  would  seem,  however,  that  if  the 
term  be  improperly  used,  it  may  be  rejected  as  surplusage.  Com.  v.  Squire,  1 
Met.  258.  Wh.  Cr.  L.  8th  ed.'§§  641a,  64.5.  But  now,  by  stat.  1852,  ch.  37, 
it  is  felony.     See  Com.  r.  Chapman,  11  Cush.  422. 

(j)  Com.  V.  Fenno,  125  Mass.  387. 

262 


ASSAULTS.  (2-l:9«) 

(2486)  Shooting  in  Indiana. 

That  J.  A.,  on,  etc.,  at,  etc.,  did  feloniously  attempt  to  com- 
mit a  violent  injury  upon  the  person  of  D.  C.  H.,  he,  the  said 
J.  A.,  having  then  and  there  a  present  ability  to  commit  said 
injury,  by  then  and  there  feloniously,  purposely,  and  with  pre- 
meditated malice,  shooting  at  and  against  the  said  D.  C.  H. 
with  a  certain  pistol,  cpmmonly  called  a  revolver,  then  and 
there  loaded  with  gunpowder  and  leaden  balls,  which  the  said 
J.  A.  then  and  there  in  both  his  hands  had  and  held,  with  in- 
tent then  and  there  and  thereby  him,  the  said  D.  C.  H.,  felo- 
niously, purposely,  and  with  premeditated  malice  to  kill  and 
murder.(j) 

(249)  Assault  with  intent  to  murder  in  South  Carolina. 

That  A.  B.,  on,  etc.,  with  force  and  arms,  at  in  the  dis- 

trict of  and  state  aforesaid,  in  and  upon  E.  F.,  in  the  peace 

of  God  and  of  the  said  state  aforesaid,  then  and  there  being,  did 
make  an  assault,  and  him  the  said  E.  F.  did,  etc.,  with  intent 
him  the  said  E.  F.  then  and  there  feloniously,  wilfully,  and  of 
his  malice  aforethought,  to  kill  and  murder,  and  other  wrongs 
to  the  said  E.  F.  then  and  there  did,  to  the  great  damage  of  the 
said  E,  F.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(249a)  Assault  with  intent  to  murder.,  under  Indiana  statute. 

The  grand  jurors  in,  etc.,  .  .  .  upon  their  oath  do  pre- 
sent, that  C.  R.  McC.  on,  etc.,  at,  etc.,  did  then  and  there  unlaw- 
fully and  feloniously  attempt  to  commit  a  violent  injury  upon 
the  person  of  one  R.  R.  P. ;  he,  the  said  C.  R.  McC,  was  then 
and  there  a  person  of  sound  mind,  and  did  then  and  there  have 
a  present  ability  to  then  and  there  commit  said  violent  injury; 
that  is,  he,  the  said  C.  R.  McC,  did  then  and  there  unlawfully, 
feloniously,  purposely,  and  with  premeditated  malice,  shoot, 
fire,  and  discharge  toward,  at,  and  against  the  body  of  said  R. 
R.  P.  one  certain  pistol,  revolver,  and  gun,  which  he,  the  said 
C.  R.  McC,  then  and  there  had  and  held  in  his  hands,  and 
which  said  pistol,  revolver,  and  gun  was  then  and  there  loaded 
and  charged  with  cartridge,  gunpowder,  leaden  balls,  shot,  and 

( ?■)   Affirmed  in  Agee  v.  State,  64  Ind.  340. 

263 


(249a)  OFFENCES    AGAINST    THE    PERSON. 

bullets,  and  the  said  C.  R.  McC,  with  said  pistol,  revolver,  and 
gun,  so  loaded  and  charged  as  aforesaid,  and  in  his,  the  said 
C.  R.  McC.'s,  hands  so  had  and  held  as  aforesaid,  did  then  and 
there  shoot,  fire,  and  discharge  said  pistol,  revolver,  and  gun  at, 
toward,  and  against  the  body  and  person  of  the  said  R.  R.  P., 
with  the  intent  then  and  there  and  thereby  him,  the  said  R.  R. 
P.,  unlawfully,  feloniously,  purposely,  and  with  premeditated 
malice  to  kill  and  murder.(A-) 

Another  form. 

The  grand  jurors  of,  etc.,  good  and  lawful  men,  duly  and 
legally  empanelled,  sworn,  and  charged  in,  etc.,  at,  etc.,  to  in- 
quire in  and  for  the  body  of  said  county,  in  the  name  and  by 
the  authority  of,  etc.,  upon  their  oath  present  and  charge,  that 
on,  etc.,  and  in,  etc.,  W.  A.  J.,  in  and  upon  one  0.  B.  S.,  did 
then  and  there  unlawfully,  feloniously,  purposely,  and  with 
premeditated  malice,  make  an  assault,  and  then  and  there,  at 
and  against,  and  in  contact  with,  the  said  0.  B.  S.,  did  felo- 
niously, purposely,  and  with  premeditated  malice,  shoot  a  cer- 
tain pistol,  then  and  there  loaded  with  gunpowder  and  leaden 
balls,  which  he,  the  said  W.  A.  J.,  then  and  there  in  his  hands 
had  and  held,  with  the  intent  then  and  there  him,  the  said  0. 
B.  S.,  feloniously,  purposely,  and  with  premeditated  malice,  to 
kill  and  murder.(^) 

(A.)  Howk,  J.  "The  appellant's  learned  attornej-s  do  not,  however,  as  we 
understand  them,  controvert  the  sufficiency  of  the  indictment  in  tliis  case,  to 
state  a  public  otfence.  But  tlicy  claim,  and  to  this  point  they  have  directed 
much  of  their  elaborate  argument  in  this  court,  that  the  indictment  charged  the 
appellant  with  an  assault  and  battery,  and  not  merely  with  an  assault  with  the 
intent  to  commit  murder.  We  think  that  this  point  is  not  well  taken."  Mc- 
Cully  V.  State,  62  Ind.  428. 

(l)  It  was  held  that  this  indictment  was  not  open  to  the  objection  of  duplicity. 
Jones  V.  State,  60  Ind    241. 

In  Jarrell  v.  State,  58  Ind.  293,  the  first  count  charged  that  "H.  J.  on,  etc., 
at,  etc.,  did  then  and  there  unlawfully,  feloniously,  purposely,  and  with  pre- 
meditated malice,  in  a  rude,  insolent,  and  angr}'  manner,  unlawfully  touch, 
strike,  beat,  and  wound  one  J.  H.  G.,  lay  then  and  there  unlawfully,  purposely, 
feloniously,  and  with  premeditated  malice,  shooting  said  J.  H.  G.  with  a  cer- 
tain pistol,  which  said  pistol  was  then  and  there  loaded  with  gunpowder  and 
leaden  balls,  and  which  said  pistol  he,  the  said  H.  J.,  in  his  hand  then  and  there 
held,  with  intent  then  and  there  and  thereby  him,  the  said  J.  H.  G.,  unlaw- 
fully, purposely,  feloniously,  and  with  premeditated  malice,  to  kill  and  murder, 
contrary,"  etc.  The  second  count  charged  "that  on,  etc.,  at,  etc.,  H.  J.  did 
then  and  there  unlawfully  and  feloniously  make  an  assault  upon  one  J.  H.  G., 
and  him  the  said  J.  H.  G.  in  a  rude,  insolent,  and  angry  manner,  did  then  and 

264 


ASSAULTS.  (251) 

(250)  Felonious  assault  with  intent  to  rob,  being  armed.     Rev.  Sts. 
of  llass.  ch.  125,  §  14. 

That  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  the  said  C.  D.  be- 
ing then  and  there  armed  with  a  certain  dangerous  weapon,  to 
wit,  an  axe,  in  and  upon  one  J.  IST.  feloniously,  and  with  force 
and  violence,  did  make  an  assault,  with  intent  the  moneys,  goods, 
and  chattels  of  the  said  J.  N.,  from  the  person  and  against  the 
will  of  the  said  J.  N".,  then  and  there  feloniously,  and  by  force 
and  violence,  and  by  assault  and  putting  in  fear,  to  rob,  steal, 
take,  and  carry  away  ;  against  the  peace,  etc.,  and  contrary  to 
the  form,  etc. 

(250a)  Assault  ivith  intent  to  rob,  under  English  statute. 

in  and  upon  one  J.  IST.  feloniously  did  make  an  assault, 

with  intent  the  moneys,  goods,  and  chattels  of  the  said  J.  N., 
from  the  person  and  against  the  will  of  him,  the  said  J.  N"., 
then  feloniously  and  violently  to  steal,  take,  and  carry  away, 
against,  etc.(m) 

(251)  Assault  with  intent  to  rob,  against  two.{n) 

That  (the  prisoners),  on,  etc.,  at,  etc.,  in  and  upon  R.  B.,  in  the 
peace  of  God  and  our  said  lady  the  queen,  then  and  there  being, 

there  unlawfully  and  feloniously  touch,  strike,  beat,  and  wound,  by  then  and 
there  shooting  at  and  against  the  said  J.  H.  G.,  with  a  certain  pistol,  which  said 
pistol  he  the  said  H.  J.  then  and  there  had  and  held  in  his  liand,  and  wliich  said^ 
pistol  was  then  and  tliere  loaded  with  gunpowder  and  leaden  balls,  with  intent 
then  and  there  and  thereby  him,  the  said  J.  H.  G.,  unlawfully,  feloniously,  ma- 
liciously, and  with  premeditated  malice  to  kill  and  murder,  contrary,"  etc.  The 
sufficiency  of  the  indictment  being  before  the  supreme  court,  it  was  said  by 
Perkins,  J.  :  "The  objection  to  the  first  count  is,  that,  while  it  avers  that  J. 
wounded  G.  by  shooting  him  with  a  pistol,  it  does  not  aver  that  he  hit  him. 
Our  statute  enacts,  that  '  words  and  phrases  will  be  taken  in  their  plain,  or  ordi- 
nary, and  usual  sense.  But  teclinical  words  and  phrases  having  a  peculiar  and 
appropriate  meaning  in  law  should  be  understood  according  to  their  technical 
import.'     2  R.  S.  1876,  p.  315. 

"The  word  'shooting'  is  not  a  technical  word,  and,  in  its  usual  sense,  the 
phrase  '  shooting  a  person'  means  that  the  person  was  hit  by  the  substance  with 
which  the  gun  or  pistol  was  loaded."  The  first  count  in  the  indictment  was  held 
good. 

(m)  Arch.  C.  P.  19th  ed.  p.  458,  where  it  is  said  that  this  form  was  ap- 
proved in  R.  V.  Huxley,  1   C.  &  M.  59G. 

(n)  R.  V.  Huxley,  1  C  &  M.  596,  where  this  form  was  sustained  by  Patteson 
and  Creswell,  JJ 

265 


(254)  OFFENCES    AGAINST    THE   PERSON. 

feloniously  did  together  make  an  assault  with  intent  the  moneys, 
goods,  and  chattels  of  the  said  R.  B.,  from  the  person  and  against 
the  will  of  him  the  said  R.  B.,  then  and  there  feloniously  and 
violently  to  rob,  steal,  take,  and  carry  away,  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(252)  Another  form  for  same.{o) 

That  defendants,  late  of  the  said  county,  on,  etc.,  in  the  county 
of  C.  aforesaid,  in  and  upon  the  person  of  G.  H.  G.,  in  the  peace 
of  the  people  of  the  state  of  Illinois,  then  and  there  being,  with 
force  and  arms,  did  make  an  assault,  with  an  intent,  then  and 
there,  unlawfully,  wilfully,  and  feloniously  to  commit  a  robbery, 
and  other  wrongs  to  the  said  G.  H.  G.  did,  then  and  there,  etc. 

(253)  Assault  with  intent  to  ravish.{p) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  on  one  E.  F.  did  make  an 
assault,  and  her  the  said  E.  F.  then  and  there  did  beat,  wound, 
and  ill-treat,  so  that  her  life  was  greatly  despaired  of,  with  an 
intent  her  the  said  E.  F.,  against  her  will,  then  and  there  feloni- 
ously to  ravish(9')  and  carnally  know,  and  other  wrongs  to  her 
the  said  E.  F.  then  and  there  did,  against,  etc.  {Conclude  as  in 
book  1,  chajyter  3.) 

(254)  Same  under  Rev.  Sts.  of  Mass.  ch.  125,  §  19. 

That  C.  D.,  late  of  B.,  in  the  county  of  S,,  laborer,  on  the 
first  day  of  June  in  the  year  of  our  Lord  with  force  and 

arms,  at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon  one 
J.  N.  feloniously  did  make  an  assault,  with  intent  the  said  J.  IS", 
then  and  there  feloniously  to  ravish  and  carnally  know,  by  force 
and  against  her  will ;  against  the  peace,  etc.,  and  contrary,  etc. 

(o)  Conolly  V.  State,  3  Scam.  477.  This  form,  though  very  loose,  was  sus- 
tained. 

(p)  Stark.  C.  P.  429.  "If  the  offence  of  rape,"  remarks  Mr.  Starkle,  "ap- 
pears to  have  been  actually  committed,  the  prisoner  should  be  acquitted,  since 
the  misdemeanor  merges  in  the  felony.  See  East,  P.  C.  411."  But  see  Wh. 
Cr.  L.  8th  ed.  §§  576,  1343.  As  to  propriety  of  joining  this  count  -with  a  count 
for  rape,  see  lb.  8th  ed.  §  570.     For  other  points  see,  supra,  notes  to  form  242. 

{q)  This  is  essential.  Means  v.  Com.,  2  Grant,  385.  An  indictment  for  an 
assault  with  intent  to  commit  a  rape  need  not  allege  that  the  intent  was  to  "car- 
nally and  unlawfully  know."     Singer  v.  People,  13  Hun,  418,  aff.  75  N.  Y.  608. 

266 


ASSAULTS.  (257) 

(255)  Assault  with  intent  to  ravish  under  Ohio  stat.  jp.  48,  §  4.(r) 

That  A.  B.,  late  of  the  county  aforesaid,  on  the  twenty-first 
day  of  August,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  thirty-six,  in  the  county  of  Montgomery  aforesaid,  in 
and  upon  one  M.  ]Sr.,then  and  there  being,  did  unlawfully  make 
an  assault,  and  her  the  said  M.  IS",  then  and  there  did  beat, 
wound,  and  ill-treat,  with  intent  her  the  said  M.  N.  violently, 
forcibly,  and  against  her  will,  then  and  there,  unlawfully  and 
feloniously  to  ravish  and  carnally  know,  to  the  great  damage  of 
the  said  M.  IS". ;  contrary,  etc.    {Conclude  as  in  hook  1,  chajHer  3.) 

(256)  Another  form  for  assault  ivith  intent  to  ravish.{s) 

That  W.  S.,  of  the  county  aforesaid,  yeoman,  on,  etc.,  at  the 
county  aforesaid,  and  within  the  jurisdiction  of  this  court,  in  and 
upon  S.  C,  spinster,  in  the  peace  of  God,  then  and  there  being, 
with  force  and  arms,  an  assault  did  make,  with  an  intention  to 
ravish  and  carnally  know  the  said  S.  C,  and  the  said  S.  C.  did 
beat,  wound,  and  evilly  treat,  so  that  her  life  was  greatly  de- 
spaired of,  and  other  harms  to  her  then  and  there  did,  to  the 
great  damage  of  the  said  S.,  and  against,  etc.  {Conclude  as  in 
book  1,  chapter  3.) 

(257)  Same  against  two.{t) 

That  A,  B.,  late,  etc.,  and  C.  D.,  late,  etc.,  on,  etc.,  at,  etc.,  in 
and  upon  E.,  the  wife  of  one  H.  S.,  did  make  an  assault,  and 
her  the  said  E.  then  and  there  did  beat,  wound,  and  ill-treat,  so 
that  her  life  was  greatly  despaired  of,  with  intent  that  he,  the  said 
C.  D.,  should  then  and  there  feloniously  and  against  the  will  of 
the  said  E.,  ravish  and  carnally  know  her  the  said  E.,  and  that 
they  the  said  A.  B.  and  C.  D.  other  wrongs  to  the  said  E.  then 
and  there  did,  contrary,  etc.  {Conclude  as  in  book  1,  chapter  3.) 
{Add  a  count  for  assault.) 

(/•)  Warren's  C.  L.  59. 

(s)  Stout  i;.  Com.,  11  S.  &  R.  177.  The  omission  of  the  word  "feloniously," 
which  was  the  first  ground  of  exception  to  the  indictment,  was  sustained  by  the 
court ;  and  the  Avant  of  an  averment  of  time  and  place  to  the  concluding  allega- 
tion, was  declared  to  be  imniaterial,  the  time  and  place  named  in  the  first  clause 
qualifying  the  whole  oilence. 

{t)  Stark.  C.  P    429. 

267 


(261)  OFFENCES    AGAINST    THE   PERSON. 

(259)  For  an  indecent  assaulL{u) 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.,  late  of  B., 
in  the  county  of  S.,  laborer,  on  the  first  clay  of  June,  in  the  year 
of  our  Lord  at  B,  aforesaid,  in  the  county  aforesaid,  unlaw- 

fully and  indecently  did  make  an  assault  in  and  upon  one  A.  B., 
and  did  then  and  there  unlawfully,  indecentl}^  and  against  the 
will  of  the  said  A.  B.,  pull  up  the  clothes  of  the  said  A.  B.,  and 
did  then  and  there  unlawfully,  indecently,  and  against  the  will 
of  the  said  A.  B.,  put  and  place  the  hands  of  the  said  C.  D.  upon 
and  against  the  private  parts  of  the  said  A.  B.  [stating  the  inde- 
cent acts  which  loill  be  proved  by  the  evidence),  and  other  wrongs 
to  the  said  A.  B.  then  and  there  did;  against,  etc.  (^Conclude 
as  in  book  1,  chapiter  3.) 

(260)  For  an  indecent  assault  loith  intent  to  have  an  improper 
connection.{v) 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.,  later  of 
B.,  in  the  county  of  S.,  physician,  on  the  lirst  day  of  June,  in 
the  year  of  our  Lord  at  B.,  in  the  county  of  S.,  did  unlaw- 

fully and  indecently  assault  one  A.  B.,  and  did  then  and  there 
unlawfully  and  indecently,  and  against  the  will  of  the  said  A. 
B.,  put  and  place  the  private  parts  of  the  said  C.  B.  against  the 
private  parts  of  the  said  A.  B.,  and  did  then  and  there  other- 
wise ill-treat  and  ill-use  her;  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(261)  For  an  indecent  assault  in  stripping.{w) 
The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.,  late  of  B., 

(m)  Tr.  &  H.  Prec.  41. 

{v)  Tr.  &  H.  Prec.  41  ;  6  Cox,  C.  C.  Appendix,  p.  xHii.  The  later  English 
cases  indicate  a  distinction  between  an  assault  witli  an  intent  to  ravish  and  an 
assault  with  intent  to  have  an  improper  connection,  which  makes  it  important 
to  have  a  count  for  the  latter  in  all  cases  where  it  is  doubtful  whether  it  was  in- 
tended to  consummate  the  offence  by  force.  Wh.  Cr.  L.  8th  ed.  §§  576  et  seq.  ; 
R.  V.  Stanton,  1  C.  &  K.  415  ;  R.  v.  Saunders,  8  Carrington  &  Payne,  265  ; 
Regina  v.  Williams,  8  Carrington  &  Payne,  286.  The  act,  say  Train  &  Heard, 
being  done  fraudulently  will  support  the  averment  that  it  was  against  the  will  of 
the  prosecutrix.  This  form  seems  applicable  where  actual  connection  has  taken 
place  under  circumstances  involving  any  legal  assault,  but  no  higher  offence.  See 
Regina  i-.  Case,  1  Den.  C.  C.  580  ;  4  Cox,  C.  C.  220  ;  1  Eng.  Law  &  Eq.  R. 
544  ;   1  Temple  &  M.  C.  C.  318. 

(«')  6  Cox,  C.  C.  Appendix,  p.  xliii.  See  R.  v.  Rosinski,  1  Moody,  C.  C. 
19;   1  Lewin,  C.  C.  11. 

268 


ASSAULTS.  (263a) 

in  the  county  of  S.,  laborer,  on  the  first  day  of  June,  in  the 
year  of  our  Lord  at  B.,  in  the  county  of  S.,  did  unlawfully 

and  indecently  assault  one  C.  D.,  and  did  then  and  there  unlaw- 
fully and  indecently,  and  against  the  will  of  the  said  C.  D.,  pull 
and  strip  the  clothes  of  the  said  C.  D.  from  and  off  the  body  of 
the  said  C.  D.,  and  did  then  and  there  otherwise  ill-treat  and 
ill-use  her;  against,  etc.     {^Conclude  as  in  book  1,  chapter  3.) 

(262)   Assault  with  intent  to  rape — attempting  to  abuse  a  female 
under  ten  years  of  age,  under  Ohio  stat.  p.  48,  §  4.(:r) 

That  A.  B.,  late  of  the  county  of  Lawrence  aforesaid,  on  the 
seventh  day  of  June,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  fifty,  in  and  upon  one  M.  ]^.,  then  and  there 
being,  unlawfully  did  make  an  assault,  with  an  intent,  her  the 
said  M.  I^.  then  and  there  unlawfully  and  feloniously  to  carnally 
know  and  abuse,  he  the  said  A.  B.  then  and  there  being  a  male 
person  of  the  age  of  seventeen  years  and  upward,  and  the  said 
M.  E".  being  then  and  there  a  female  child  under  the  ase  of  ten 
years.     {Conclude  as  in  book  1,  chapter  3.) 


"a^ 


(263)  Assault  with  intent  to  steal.{y) 

That  A.  B.,  on,  etc.,  on  E.,  etc.,  did  make  an  assault,  etc., 
with  intent  feloniously  to  steal,  take,  and  carry  away  the  money 
of  the  said  E.  from  his  person ;  and  that  the  said  A.  B.  did  then 
and  there  put  his  right  hand  into  the  pocket  of  the  coat  of  the 
said  E.,  on  the  body  of  the  said  E.,  and  other  harms  then  and 
there  did,  etc.     {Add  a  count  for  an  assault.) 

(263a)  Injury  to  a  child  by  withholding  from,  it  food. 

The  jurors  for,  etc.,  upon  their  oath  present,  that  F.  R,,  single 
woman,  of,  etc.,  on,  etc.,  was  the  mother  of  one  M.  J.  R.,  an 

(x)  Warren's  C.  L.  58. 

(?/)  Rogers  v.  Cora.,  5  S.  &  E,.  463.  It  is  not  necessary,  as  was  held  here,  in 
assault  with  intent  to  steal,  that  tlie  goods  stolen  should  be  set  out.  "  The  in- 
tention of  the  person  was  to  pick  the  pocket  of  Earle  of  whatever  he  found  in  it ; 
and  although  there  might  be  nothing  in  the  pocket,  the  intention  to  steal  is  the 
same  ;  he  had  no  intention  to  steal  any  i)articular  article,  for  he  might  not  know 
what  was  in  it ;  it  would  be  impossible  to  lay  the  intention  in  any  other  way 
than  a  general  intention  to  pick  the  pocket  of  Earle.  The  crime  was  the  assault, 
the  intention  is  only  aggravation."  This  question  is  further  considered  in  the 
notes  to  form  242. 

269 


(263a)  OFFENCES    AGAINST    THE   PERSON. 

infant  of  tender  years,  to  wit,  of  the  age  of  five  years ;  and  that 
the  said  M.  J.  R.  was  then  and  there  under  the  care,  dominion, 
and  control  of  the  said  F.  R.,  and  wholly  unable  to  provide  for 
herself;  and  that  on  the  day  and  year  aforesaid,  and  on  divers 
other  days  and  times,  as  well  before  as  after  that  day,  it  was 
the  duty  of  the  said  F.  R.  to  protect,  shelter,  and  nourish  the 
said  M.  J.  R.,  she,  the  said  F.  R.,  being  able  and  having  the 
means  to  perform  and  fulfil  her  said  duty  ;  and  the  jurors  afore- 
said, upon  their  oath  aforesaid,  further  present,  that  the  said  F. 
R.,  well  knowing  the  premises  and  not  regarding  her  duty  in 
that  behalf,  on,  etc.,  and  on  divers  other  days  and  times,  as  well 
before  as  after  that  day,  in  the  borough  aforesaid,  did  unlaw- 
fully and  wilfully  neglect  and  refuse  to  find  the  said  M.  J.  R. 
with  sufficient  meat,  drink,  wearing  apparel,  bedding,  and 
other  necessaries  proper  and  requisite  for  the  sustenance,  support, 
clothing,  covering,  and  resting  the  body  of  the  said  M.  J.  R., 
by  means  whereof  the  said  M.  J.  R.  became  weak,  sick,  and  ill, 
and  greatly  emaciated  in  her  body,  against  the  peace,  etc.(^) 

{z)  R.  V.  Rngg,  12  Cox,  C.  C.  16.  In  this  case  the  jury  returned  a  verdict 
of  guilty,  on  the  ground  that,  if  the  prisoner  had  applied  to  the  guardians  for 
relief,  she  would  have  had  it.  It  was  held  that  the  count  was  not  proved.  For 
homicide  of  wife  bv  neglect  to  provide  proper  care,  see  supra,  lG3a. 

270 


BOOK  lY. 

OFFENCES  AGAINST  PROPEETY. 


CHAPTER  I. 
FORGERY,  COINING,  UTTERING,  ETC. 

(2G4)  General  frame  of  indictment  at  common  law. 

(265)  For<Ting,  at  common  law,  a  certificate  of  an  officer  of  the  American 
army,  in  1777,  to  the  effect  that  he  had  received  certain  stores,  etc. 

(26G)  Second  count.     Publishing  the  same. 

(2G7)  Forgery.  Altering  a  certificate  of  an  officer  of  the  American  army 
in  1 778,  to  the  effect  that  he  had  received  for  the  use  of  the  troops 
at  Carlisle  certain  articles  of  clothing.  Offence  laid  at  common 
law,  the  intent  being  to  defraud  the  United  States. 

(268)  Forgery.     Altering  and  defacing  a  certain  registry  and  record,  etc., 

under  the  Pennsylvania  act  of  1700. 
(2G8a)  Forging  will  under  English  statute. 
(2G86)  Making  false  entry  in  marriage  register. 
(268c)  Making  false  entry  in  baptismal  register. 

(269)  For  forging,  etc.,  a  bill  of  exchange,  an  acceptance  thereof,  and  an 

indorsement  thereon. 

(270)  Second  count,  for  uttering. 

(271)  Third  count,  for  forging  an  acceptance. 

(272)  Fourth  count,  same  stated  differently. 

(273)  Fifth  count,  for  forging  an  indorsement,  etc. 

(274)  Sixth  count,  for  publishing  a  forged  indorsement,  etc. 

(275)  For  forgery  at  common   law  in  antedating  a  mortgage  deed  with 

interest,  to  take  place  of  a  prior  mortgage. 
(275a)  Forgery  of  note  under  Indiana  statute. 

(276)  At  common  law.     Against  a  member  of  a  dissolved  firm  for  forging 

the  name  of  the  firm  to  a  promissory  note. 

(277)  Forging  a  letter  of  attorney  at  common  law. 

(278)  Forgery  of  bill  of  exchange.     First  count,  forging  the  bill. 

(279)  Second  count.     Uttering  the  same. 

(280)  Third  count.     Forging  an  acceptance  on  the  same. 

(281)  Fourth  count.     Offering,  etc.,  a  forged  acceptance. 

(282)  Sixth  count.     Offering,  etc.,  forged  indorsement. 

271 


OFFENCES  AGAINST  PROPERTY. 

(283)  Forging  and  publishing  a  receipt  for  payment  of  money. 

(284)  Second  count,  for  uttering. 

(285)  Forging  a  receipt,  under  the  North  Carolina  statute. 

(286)  Forging  ^en /acias  at  common  law. 

(287)  Second  count.     Uttering  same. 

(288)  Forgery  of  a  bond  at  common  law. 

(289)  At  common  law.  by  separating  from  the  back  of  a  note  an  indorse- 

ment of  part  payment. 

(290)  Forgery  in  altering  a  peddler's  license,  at  common  law. 

(291)  Forgery  of  a  note  which  cannot  be  particularly  described  in  con- 

sequence of  its  being  destroyed. 

(292)  Forgery  of  a  note  whose  tenor  cannot  be  set  out  on  account  of  its 

being  in  defendant's  possession. 

(293)  Forgery  of  bond  when  forged  instrument  is  in  defendant's  possession. 

(294)  Forgery  at  common  law,  in  passing  counterfeit  bank  notes. 

(295)  Forgery  of  the  note  of  a  foreign  bank  as  a  misdemeanor  at  common 

law. 

(296)  Forging  a  bank  note,  and  uttering  the  same,  under  English  statute. 

Putting  away  same. 

Forging  promissory  note. 

Putting  away  same. 
Same  as  first,  with  intent  to  defraud  J.  S. 
Putting  away  same. 

Same  as  second,  with  intent  to  defraud  J.  S. 

Putting  away  same. 

(304)  Attempt  to  pass  counterfeit  bank  note,  under  Ohio  statute. 

(305)  Forging  a  certificate  granted  by  a  collector  of  the  customs. 

(306)  Causing  and  procuring  forgery,  etc. 

(307)  Altering  generally. 

(308)  Altering,  etc.,  averring  specially  the  alterations. 

(309)  Same  in  another  shape. 

(310)  Uttering  certificate  as  forged. 

(311)  Uttering  certificate  as  altered. 

(312)  Forging  a  treasury  note. 

(313)  Causing  and  procuring,  etc. 

(314)  Altering  same. 

(315)  Passing  note,  etc. 

(316)  Same  in  another  shape. 

(317)  Feloniously  altering  a  bank  note. 

(318)  Having  in  possession  forged  bank  notes  without  lawful  excuse,  know- 

ing the  same  to  be  forged. 

(319)  Uttering  and  passing  a  counterfeit  bank  bill,   under  §   4,  ch.  99,  of 

Revised  Statutes  of  Vermont. 

(320)  Uttering  forged  order,  under  Ohio  statute. 

(321)  Passing  same. 

272 


(297) 

Second  count. 

(298) 

Third  count. 

(299) 

Fourth  count. 

(300) 

Fifth  count,     i 

(301) 

Sixth  count. 

(302) 

Seventh  count, 

(303) 

Eighth  count. 

FORGERY,   COINING,   UTTERING,   ETC. 

(322)  Uttering  a  forged  note  purporting  to  be  issued  by  a  bank  in  another 

state,  under  the  Vermont  statute. 

(323)  Having  counterfeit  bank  note  in  possession,  under  Ohio  statute. 

(324)  Having  in  possession  counterfeit  phites,  under  Ohio  statute. 

(325)  Secretly  keeping  counterfeiting  instruments,  under  Ohio  statute. 

(326)  Having  in  possession  counterfeit  bank  notes,  under  Ohio  statute. 

(327)  Having  in  possession  forged  note  of  United   States  Bank,  under  the 

Vermont  statute. 

(328)  Forgery,  etc.,  in  New  York.      Having  in  possession  a  forged  note  of 

a  corporation. 

(329)  Second  count.     Uttering  the  same. 

(330)  Forging  an  instrument  for  payment  of  money,  under  the  New  York 

statute. 

(331)  Second  count.     Uttering  the  same. 

(332)  Having  in  possession  forged  notes,  etc.,  with  intent  to  defraud,  under 

the  New  York  statute. 

(333)  Forgery  of  a  note  of  a  bank  incorporated  in  Pennsylvania,  under  the 

Pennsylvania  statute. 

(334)  Second  count.     Passing  same. 

(335)  Forgery  of  the  note  of  a  bank  in  another  state,  under  the  Virginia 

statute. 

(336)  For  making,  forging,  and  counterfeiting,  etc.,  American  coin,  under 

act  of  congress. 

Same,  averring  time  of  coining. 
Passing,  etc. 

Same  in  another  shape. 
Same,  specifying  party  to  be  defrauded. 

(341)  Counterfeiting  half  dollars,  under  act  of  congress. 

(342)  Passing  counterfeit  half  dollars,  with  intent  to  defraud  an  unknown 

person,  under  act  of  congress. 

(343)  Second  count.     Same,  with  intent  to  defraud  R.  K. 

(344)  Having  coining  tools  in  possession,  at  common  law. 
(344«)  Having  die  for  counterfeiting  in  possession. 

(345)  Making,  forging,  and  counterfeiting,  etc.,  foreign  coin,  quarter  dollar, 

under  act  of  congress. 

(346)  Second  count.     Procuring  forgery. 

(347)  Passing,  uttering,  and  publishing  counterfeit  coin  of  a  foreign  country, 

under  act  of  congress,  specifying  party  to  be  defrauded. 

(348)  Debasing  the  coin  of  the  United  States,  by  an  officer  employed  at  the 

mint,  under  act  of  congress. 

(349)  Fraudulently  diminishing  the  coin  of  the  United  States,  under  act  of 

congress. 

(350)  Uttering  a  counterfeit  half  guinea,  at  common  law. 

(351)  Passing  counterfeit  coin  similar  to  a  French  coin,  at  common  law. 

(352)  Counterfeiting  United  States  coin,  under  the  Vermont  statute. 

(353)  Having  in  possession  coining    instruments,  under   the  Rev.   Sts.   of 

Massachusetts,  ch.  127,  §  18. 

VOL.  I.-18  273 


(337) 

Second  count. 

(338) 

Third  count. 

(339) 

Fourth  count, 

(340) 

Fifth  count. 

(264)  OFFENCES  AGAINST  PROPERTY. 

(354)  Having  in  possession  ten  counterfeit  pieces  of  coin,   with  intent  to 

pass  the  same,  under  Rev.  Sts.  of  Mass.  ch.  127,  §  15. 

(355)  Having  in  custody  less  than  ten  counterfeit  pieces  of  coin,  under  Rev. 

Sts.  of  Mass.  ch.  12  7,  §  16. 

(356)  Uttering  and  publishing  as  true  a  forged  promissory  note.     Rev.  Sts. 

of  Mass.  ch.  127,  §  2. 

(357)  For  forging  a  promissory  note.     Rev.  Sts.  of  Mass.  ch.  127,  §  1. 

(358)  For  counterfeiting  a  bank  bill.     Rev.  Sts.  of  Mass.  ch.  127,  §  4. 

(359)  For  having  in  possession  at  the  same  time,  ten  or  more  counterfeit  bank 

bills,  with  intent  to  utter  and  pass  the  same  as  true.     Rev.  Sts.  of 
Mass.  ch.  127,  §  5. 

(360)  Passing  a  counterfeit  bank  bill.     Rev.  Sts.  of  Mass.  ch.  127,  §  6. 

(361)  Having  in  possession  a  counterfeit  bank  bill,  with  intent  to  pass  the 

same.     Rev.  Sts.  of  Mass.  ch.  127,  §  8. 

(362)  Making  a  tool  to  be  used  in  counterfeiting  bank  notes.     Rev.  Sts.  of 

Mass.  ch.  127,  §  9. 

(363)  Having  in  possession  a  tool  to  be  used  in  counterfeiting  bank  notes, 

with  intent  to  use  the  same.     Rev.  Sts.  of  Mass.  ch.  127,  §  9. 

(364)  Counterfeiting  current  coin.     Rev.  Sts.  of  Mass.  ch.  127,  §  15. 

(365)  Uttering  and  passing  counterfeit  coin.     Rev.  Sts.  of  Mass.  ch.  127, 

§16. 

(366)  Coining,  etc.,  under  the  North  Carolina  statute. 

(264)  General  frame  of  indidrnent  at  common  law.{a) 

That,  etc.,  on,  etc.,  falsely  and  fraudulently  did  forge  and 
counterfeit,(6)  [and  cause  and  procure  to  be  forged  and  counter- 
feited] ,(r-)  a  certain  promissory  note  for  the  payment  of  money, 
purporting  to  be  made  by  one  A.  B.,  payable  on  demand  to  one 
C.  J).-,{d)  the  tenor  of  which  said  forged  and  counterfeited 
promissory  note  is  as  follows,  that  is  to  say :  {here  set  out  the 
document  in  the  manner  prescribed  in  noie),{e)  with  intent  to 
defraud  the  said  A.  B.,(/)  (to  the  great  damage  of  the  said  A. 
B.),(^)  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(a)  This  form  is  introduced,  not  because  it  can  be  of  use  as  a  precedent,  the 
common  law  remedy  having  been  absorbed  by  statutes,  but  in  order  to  place 
in  a  more  regular  shape  the  necessary  notes.  For  the  groundwork  of  the  latter, 
I  have  depended  on  Mr.  Starkie  (C.  P.  106),  adding  at  large  the  American  and 
the  later  English  authorities. 

(b)  "It  is  sufhcient  to  allege  that  the  defendant  forged  and  counterfeited, 
though  it  is  usual  to  aver  that  he  did  falseli/  forge  and  counterfeit,  for  the  adverb 
is  sufficiently  implied  in  the  former  words.  I  Str.  12,  19;  East,  P.  C.  985; 
R.  V.  Mariot,  2  Lev.  221  ;  R.  i\  Dawson,  1  Str.  19.  In  Ellsworth's  case  {coram 
Willes,  York  Lent  Assizes,  1780,  East,  P.  C.  986),  the  indictment  stated  that  the 
said  T.  E.,  the  said  bill  of  exchange  did  feloniously  altej-  and  cause  to  be  altered, 
by  falsely  making,  forging,  and  adding  the  letter  y  to  the  word  eight  in  the  bill 
mentioned,   whereby,  etc.     The  second  count  alleged,  that  certain  persons  un- 

274 


FORGERY,   COINING,   UTTERING,    ETC.  (264) 

known  altered  the  bill,  and  charged  the  defendant  Avith  uttering  and  publishing 
the  bill  as  true,  knowing  it  to  be  forged.  The  words  of  tlie  statute  on  which  the 
indictment  was  founded  (2  Geo.  II.  c.  25,  s.  1)  are,  "  If  any  person  shaW  falsely 
make,  forge,  or  counterfeit.''  It  was  objected,  in  arrest  of  judgment,  that  the 
indictment  merely  charged  that  certain  persons  unknown  did  alter,  hy  falsely 
makirif/,  etc.,  and  did  not  charge,  in  the  words  of  the  act,  that  they  falsely  made, 
forged,  etc.,  and  that  the  word  alter  was  not  used  in  the  statute.  But  the  judges 
held  that  tlie  indictment  was  good,  and  that  there  was  no  difference  in  substance 
or  in  the  nature  of  the  charge,  whether  the  indictment  were  for  feloniously  alter- 
ing, by  falsely  making  and  forging,  or  for  feloniously  making  and  forging,  by 
falsely  altering.  In  the  case  of  King  v.  Bigg  (3  P.  Wms.  419),  the  indictment 
alleged  that  the  defendant  feloniously  erased  an  indorsement  from  a  bank  note ; 
the  jury  found  that  the  defendant  had  expunged  the  inscription,  by  means  of 
some  unknown  liquor,  and  the  judges  held  that  the  prisoner  was  guilty.  The 
majority  were  of  this  opinion,  but  the  case  involved  many  other  ])oints,  and  the 
prisoner  was  afterwards  pardoned  on  condition  of  transporting  himself.  Str.  19." 
Stark.  C.  P.  108. 

"In  consideration  of  law,  every  alteration  of  an  instrument  amounts  to  a  for- 
gery of  the  whole.  In  Dawson's  case,  it  was  holden  by  ten  judges,  that  the  alter- 
ation of  the  figure  2  in  a  bank  note  to  5,  Avas  a  forging  of  a  bank  note.  East,  P. 
C.  978."  Stark.  C.  P.  108.  See  Wh.  Cr.  L.  8th  ed.  §  735,  and  authorities  to 
be  hereafter  cited. 

The  indictment  in  Teague's  case  (East,  P.  C.  979),  for  making,  forging,  and 
counterfeiting  a  bill  of  exchange  under  the  stat  7  George  II.  c.  22,  was  holden 
to  be  supported  by  proof,  that  the  defendant  had  altered  a  bill  of  exchange  for 
the  payment  of  £10  into  £50,  both  in  words  and  figures.  It  was  objected,  that 
the  defendant  ought  to  have  been  charged  with  altering  the  genuine  bill,  since 
the  Stat.  7  Geo.  II.  c.  22,  makes  it  a  distinct  otlence  to  alter  ;  but  the  judges,  on 
the  authority  of  Dawson's  case,  held  that  the  conviction  was  proper,  and  that 
every  alteration  of  a  true  instrument,  for  such  a  purpose,  made  it,  when  altered, 
a  forgery  for  the  whole  instrument.  See  also  State?'.  Kitchens,  2  Harringt.  527  ; 
Com.  V.  Ladd,  15  Mass.  526  ;  State  v.  Waters,  3  Brev.  507  ;  Com.  v.  Hayward, 
10  Mass.  34. 

But  in  cases  where  a  genuine  note  or  instrument  has  been  altered,  it  is  usual 
to  allege  the  alteration  in  one  count  of  the  indictment.  See  East,  P.  C.  980  ;  K. 
V.  Harrison  ;  R.  v.  Elsworth,  there  referred  to. 

It  is  not  suflicient  to  aver,  that  the  defendant  forged  or  caused  to  be  forged, 
for  it  is  not  certain  and  positive.  1  Salk.  342  ;  5  ^lod.  137  ;  Holt,  R.  345.  An 
indictment  which  charges  a  prisoner  with  the  ofl'ences  of  falsely  making,  forging, 
and  counterfeiting,  of  causing  and  procuring  to  be  falsely  made,  forged,  and 
counterfeited,  and  of  willingly  acting  and  assisting  in  the  said  false  making, 
forging,  and  counterfeiting,  is  a  good  indictment,  though  all  of  these  charges  are 
contained  in  a  single  count ;  and  as  the  words  of  the  statute  have  been  pursued, 
there  being  a  general  verdict  of  guilty,  judgment  ought  not  to  be  arrested  on  the 
ground  that  the  offences  are  distinct.  Rasnick  v.  Com.,  2  Va.  Cases,  356  ;  State 
V.  Houseall,  1  Rice's  Dig.  346.  Wh.  Cr.  L.  8th  ed.  §  727  for  cases.  But  where 
two  distinct  offences,  rccjuiring  diiferent  punishments,  are  alleged  in  the  same 
count,  as  where  the  forging  of  a  mortgage,  and  of  a  receipt  indorsed  thereon,  are 
both  charged  in  the  same  count,  being  repugnant  offences,  and  the  defendant  is 
convicted,  the  judgment  will  be  arrested.     People  v.  Wright,  9  Wend.  193. 

(c)  The  allegation  in  brackets,  though  rarely  necessary,  is  not  duplicity  when 
introduced.  See  last  paragraph,  and  see  Wh.  Cr.  L.  8th  ed.  §  727.  It  is  not 
necessary  to  go  on  to  allege  by  what  means  the  ''causing  and  procuring"  was 
brought  about.     Brown  r.  Com.,  2  Leigh,  769. 

(d)  It  is  essential  that  the  purport  of  the  instrument  should  be  properly  de- 
scribed, so  as  to  bring  it  within  the  statute.  The  authorities  on  this  point  are 
collected  in  the  next  note. 

(e)  Where  the  words  of  a  document  are  essential  ingredients  of  the  offence,  as 
in  forgery,  passing  counterfeit  money,  selling  lottery  tickets,  sending  threatening 

275 


(264) 


OFFENCES  AGAINST  PROPERTY. 


letters,  libel,  etc.,  the  document  must  at  common  law  be  set  out  in  words  and 
figures.  R.  v.  Mason,  2  East,  238  ;  2  East,  P.  C.  976  ;  R.  v.  Powell,  1  Leach, 
77;  R.  I'.  Hart,  1  Leach,  145;  Com.  r.  Stow,  1  Mass.  54;  Com.  v.  Bailey,  1 
Mass.  62  ;  Com.  v.  "Wright,  1  Cush.  46  ;  Com.  v.  Tarbox,  lb.  G6  ;  State  v.  Far- 
rand,  3  Halst.  333  ;  State  v.  Gustin,  2  South.  R.  749  ;  Com.  v.  Gillespie,  7  S.  & 
R.  4G9  ;  Com.  v.  Swenev,  10  S.  &  R.  173  ;  State  v.  Stephens,  Wright's  Ohio  R. 
73  ;  State  r.  Twitty,  2  Hawks,  248  ;  Rooker  v.  State,  65  Ind.  8G.  As  to  vari- 
ance see  AVh.  Cr.  Ev.  §  114.  As  to  forgery,  see  Wh.  Cr.  L.  8th  ed.  §  727.  As 
to  libel.  Ibid.  §§  1156  et  seq.  Thus,  the  omission  of  a  word  in  an  indict- 
ment for  forgery  is  fatal.  U.  S.  v.  Hinman,  1  Baldwin,  292;  U.  S.  v.  Brit- 
ton,  2  Mason,  464  ;  State  v.  Street,  Tayl.  158  ;  and  see  State  v.  Bradley,  1 
Hay.  403  ;  State  v.  Coffey,  N.  C.  Term  R.  272.  In  such  cases,  however, 
it  is  not  necessary  to  insert  the  vignettes,  devices,  letters,  or  figures  in  the 
margin,  as  they  make  no  part  of  the  meaninjr.  State  v.  Carr,  5  N.  H.  367  ; 
Com.  V.  Bailey.  1  Mass.  62  ;  Com.  v.  Stephens,  Ibid.  203  ;  Com.  v.  Taylor, 
5  Cush.  605  ;  People  v.  Franklin,  3  Johnson's  C.  299 ;  Com.  r.  Searle,  2 
Binn.  332;  Buckland  v.  Com.,  8  Leigh,  732;  Griffin  i'.  State,  14  Ohio  St.  R. 
55.  The  same  rule  holds  to  stamps.  Wh.  Cr.  L.  8th  ed.  §  677.  But  it  has 
been  held  fatal  to  omit  the  name  of  the  state  in  the  upper  margin  of  a  copy  of 
a  bank  note,  when  such  name  is  not  repeated  in  the  body.  Com.  v.  Wilson,  2 
Gray,  70. 

When  it  is  necessary  to  set  forth  exactly  a  document,  it  may  be  preceded  by 
the  words,  "  to  the  tenor  following,"  or  "in  these  words,"  or  "  as  follows,"  or 
"  in  the  words  and  figures  following,"  for  though  tiie  term  "  tenor,"  which  im- 
ports an  accurate  copy  (2  Leach,  660,  661;  3'"Salk.  225;  Holt,  347-350,  425; 
11  Mod.  96,  97;  Douglass,  193,  194;  Wh.  Cr.  L.  8th  ed.  §  737),  has  been  con- 
sidered to  be  the  most  technical  way  of  introducing  the  document,  yet  it  has  been 
ruled  that  "  as  follows"  is  equivalent  to  the  Avords  "according  to  the  tenor  fol- 
lowing," or  "in  the  words  and  figures  following,"  and  that  if  under  such  an 
allegation  the  prosecutor  fails  in  proving  the  instrument  verbatim,  as  laid,  the 
variance  will  be  fatal.  1  Leach,  78  ;  2  "Leach,  660,  961  ;  2  East  P.  C.  976  ;  2 
Bla.  Rep.  787;  Clay  i>.  People,  86  111.  147;  Wh.  Cr.  L.  8th  ed.  I  737.  Where 
the  indictment,  by  these  or  similar  averments,  fails  to  claim  to  set  out  a  copy  of 
the  instrument  in  words  and  figures,  it  will  be  invalid.  2  Leach,  597,  660,  661  ; 
State  V.  Bonney,  34  Me.  383  ;  Com.  v.  Wright,  1  Cush.  46  ;  Dana  v.  State,  2 
Oh.  St.  91  ;  Wh.  Cr.  L.  8th  ed.  §§  737  et  seq.,  1656. 

Purport,  it  is  said,  means  the  effect  of  an  instrument  as  it  appears  on  the  face 
of  it  in  ordinary  construction,  and  is  insufficient  when  literal  exactness  is  required  ; 
tenor  means  an  exact  copy  of  it.  2  Leach,  661  ;  State  v.  Bonney,  34  Me.  383  ; 
State  V.  Witham,  47  Me.  165  ;  Com.  v.  Wright,  1  Cush.  46.  And  if  the  instru- 
ment does  not  "  purport"  to  be  what  the  indictment  avers — i.  e.,  if  its  meaning 
is  not  accurately  stated — the  variance  is  fatal.  Dougl.  300  ;  State  r.  Molier,  1 
Devereux,  263;  State  v.  Carter,  Conf.  N.  C.  R.  210;  State  i'.  Wimberly,  3 
McCord,  190;  Wh.  Cr.  Ev.  §  114. 

The  words  "  in  manner  and  form  following,  that  is  say,"  do  not  profess  to  give 
more  than  the  substance,  and  are  usual  in  an  indictment  for  perjury  (1  Leach, 
192  ;  Dougl.  193,  194)  ;  but  the  word  "aforesaid"  binds  the  party  to  an  exact 
recital.  Ibid.;  Doug.  97.  "  According  to  the  purport  and  efi'eet,  and  in  sub- 
stance," are  bad,  in  cases  where  exactness  of  setting  forth  is  required.  Com.  v. 
Wright,  1  Cush.  46  ;  State  v.  Brownlow,  7  Humph.  63  ;  Dana  v.  State,  2  Oh. 
St.  91.     And  so  is  "substance  and  effect."     Com.  v.  Sweney,  10  S.  &  R.  173. 

Quotation  marks  by  themselves  are  not  sufficient  to  indicate  tenor,  unless  there 
be  something  to  show  that  the  document  within  the  quotation  marks  is  that  on 
which  the  indictment  rests.     Com.  v.  Wright,  1  Cush.  46. 

The  attaching  of  one  of  the  original  printed  papers  to  the  indictment,  in  place 
of  inserting  a  copy,  is  not  sufficient  indication  that  the  paper  is  set  out  in  the  very 
words.     Com.  r. 'Tarbox,  1  Cush.  66  ;  Wh.  Cr.  L.  8th  ed.  §§  736  et  seq. 

A  mere  variance  of  a  letter  will  not  be  fatal,  even  when  it  is  averred  that  the 

276 


FORGERY,   COINING,    UTTERING,   ETC.  (-64) 

tenor  is  set  out,  provided  the  meaning  be  not  altered  by  changing  the  word  mis- 
spelt into  another  of  a  different  meaning.  Wh.  Cr.  PI.  &  Pr.  §  273  ;  Wh.  Cr. 
Ev.  §  114;  Pt.  V.  Drake,  Salk.  660;  Pt.  v.  Wilson,  2  C.  &  R.  527  ;  1  Den.  C. 
C.  281  ;  2  Cox  C.  C.  426  ;  U.  S.  v.  Himnan,  1  Bald.  292;  U.  S.  v.  Burroughs, 
3  McL.  405  ;  State  v.  Bean,  19  Vt.  530  ;  State  v.  Weaver,  13  Ired.  491  ;  State 
V.  Coffee,  2  Murphey,  320.     For  illustrations  see  Wh.  Cr.  PI.  &  Pr.  §  173. 

Where  the  document  on  tchich  the  indictment  rests  is  in  the  defendant's  j^os- 
session,  or  is  lost  or  destroyed,  it  is  sufficient  to  aver  such  special  tacts  as  an  ex- 
cuse  for  the  non-setting  out  of  the  document,  and  then  to  proceed,  either  by  stat- 
ing its  substance,  or  by  describing  it  as  a  document  which  "  the  said  inquest  can- 
not set  forth  by  reason,"  etc.,  of  its  loss,  destruction,  or  detention,  as  the  case 
may  be  (Wh.  Cr.  Ev.  §§  118,  199.  See  Com.  v.  Sawtelle,  11  Cush  142  ;  People 
V.  Bogart,  36  Cal.  245)  ;  giving,  however,  the  purport  of  the  insti-ument  as  near 
as  may  be.  Wh.  Cr.  L.  8th  ed.  §§  728  et  seq.  ;  Pt.  v.  Watson,  2  T.  R.  200  ; 
R.  V.  Haworth,  4  C.  &  P.  254;  R.  i-.  Hunter,  4  C.  &  P.  128;  U.  S.  v.  Britton, 
2  Mason,  468  ;  State  v.  Bonney.  34  Me.  223  ;  State  v.  Parker,  1  Chipman,  Vt. 
294;  People  v.  Badgeley,  16  Wend.  531  ;  Wallace  v.  People,  27  111.  45;  Hart 
V.  State,  55  Ind.  599;  Pendleton  v.  Com.  4  Leigh,  694  ;  State  v.  Davis,  69  X. 
C.  313  ;  Du  Bois  v.  State,  50  Ala.  139.  See  fully  AVh.  Cr.  Ev.  §§  118,  199. 
For  illustrations  see  Wh.  Cr.  PI.  &  Pr.  §  176.  The  same  rule,  as  we  will  here- 
after see,  is  applied  to  indecent  publications. 

Even  where  the  prosecutor's  negligence  caused  the  loss,  the  loss  will  be  an 
excuse  for  non-description,  unless  the  misconduct  was  so  gi'oss  as  to  imply  fraud. 
State  V.  Taunt,  16  Minn.  109. 

When  there  is  an  allegation  that  a  document  is  destroi/ed,  as  an  excuse  for  its 
non-description,  there  is  a  fatal  variance  between  the  indicrtment  and  the  proof  if 
the  destroyed  instrument  is  produced  on  trial.     Smith  v.  State,  33  Ind.  159. 

Wherever  the  whole  document  is  essential  to  the  description  of  the  offence, 
the  whole  must  be  set  out  in  the  indictment.  •  It  is  otherwise,  however,  as  to 
indorsements  and  other  extraneous  matter  having  nothing  to  do  with  the  part  of 
the  document  alleged  to  be  forged.  Wh.  Cr.  L.  8th  ed.  §  753.  And  see  Com. 
(7.  Ward,  2  Mass.  397;  Com.  c.  Adams,  7  Met.  50;  Perkins  v.  Com.,  7  Grat. 
651  ;  Buckland  i-.  Cora.,  8  Leigh,  732;  State  v.  Gardiner,  1  Ired.  27  ;  Hess  v. 
State,  5  Ohio,  5;  see  R.  v.  Testick,  1  East,  181,  n.  ;  Wh.  Cr.  L.  8th  ed.  §§ 
729  et  seq. 

Where  the  indictment  is  for  forging  a  note  or  bill,  the  indorsement,  though 
forged,  need  not  be  set  out.  Com.  v.  Ward,  2  Mass.  397;  Com.  v.  Adams,  7 
Met.  50  ;  Com.  v.  Perkins,  7  Grat.  654  ;  Simmons  v.  State,  7  Ham.  116  ;  Wh. 
Cr.  L.  8th  ed.  §§  731-3,  and  Wh.  Cr.  PI.  &  Pr.  §  176.  And,  as  we  have  seen, 
it  is  not  necessary  to  set  forth  vignettes  or  other  embellishments,  though  if  this  be 
attempted  a  variance  may  be  fatal.  Wh.  Cr.  Ev.  §  114  ;  Wh.  Cr.  L.  8tli  ed  §731. 
Alterations. — An  altered  document,  as  is  elsewhere  seen,  maybe  averred  to  be 
wholly  forged.  Wh.  Cr.  L.  8th  ed.  §  735.  But  if  an  alteration  be  averred,  the 
alteration  must  be  specified  (Ibid.),  and  an  addition  which  is  collateral  to  the 
document  must,  if  forged,  be  specially  pleaded.  Com.  v.  Woods,  10  Gray,  480. 
Translations. — A  document  in  a  foreign  language  must  be  translated  and  ex- 
plained by  averments.  R.  v.  Goldstein,  R.  &  R.  473  ;  7  Moore,  1  ;  10  Price, 
88;  Wh.  Cr.  L.  8th  ed.  §  729.  The  proper  course  is  to  set  out,  as  "of  the 
tenor  following,"  tiie  original,  and  then  to  aver  the  translation  in  English  to  be 
"as  follows."  Ibid.;  R.  v.  Szudurskie,  1  Moody,  429;  R.  v.  Warshaner,  1 
Mood.  C.  C.  466  ;  Wormouth  i\  Cramer,  3  Wend.  394.  As  to  California,  see 
special  statute.  People  c.  Ah  Woo,  28  Cal.  205.  If  the  translation  be  incor- 
rect the  variance  is  fatal.  R.  v.  Goldstein,  tit  supra  ;  and  see  20  Wis.  239.  And 
so  where  initials  appear  without  an  averment  of  wiiat  they  mean  ;  R.  v.  Barton, 
1  Moody  C.  C.  141  ;  R.  o.  Inder,  2  C.  &  K.  635  ;  and  where  tiicre  is  no  aver- 
ment of  who  the  officer  was  whose  name  is  copied  in  a  forged  instrument,  tliere 
being  no  averment  of  what  the  instrument  purports  to  be.  R.  v.  Wilcox,  R.  & 
R.  C.  C.  50. 

277 


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OFFENCES    AGAINST    PROPERTY. 


{Whether  it  he  neces.tari/  to  set  out  the  whole  of  the  forged  loriting.)  "In  the 
short  report  of  Smith's  case,  in  the  first  volume  of  Salkeld  (Salk.  342,  Pasch. 
2  Ann),  it  is  stated,  that  the  defendant  was  indicted  for  forging  a  deed  of  as- 
signment of  a  lease,  signed  with  the  mark  of  one  Goddard,  citjus  tenor  seqiiitur, 
but  set  not  down  the  mark  as  in  the  assignment ;  it  was  objected  that  without 
the  mark  it  could  be  no  forgery,  and  the  objection  was  overruled.  But  this  is  a 
very  loose  report  of  the  case,  which  appears  to  be  the  same  Avith  that  reported  in 
the'third  volume  of  Salkeld,  and  by  Ld.  Raymond,  under  the  title  of  the  Queen 
V.  Goddard,  in  3  Salk.  171,  Trin.  2  Ann;  R.  v.  Goddard  e<  o/.,  Ld.  Raym.  920, 
R.  V.  Goddard  and  Carlton  ;  according  to  which  the  defendant  was  indicted  for 
foro'ing  an  assignment  of  a  lease,  and  the  tenor  was  set  out ;  at  the  bottom  of  the 
assignment  was  the  mark  of  the  assignor,  but  no  mark  appeared  upon  the  postea; 
and  the  whole  court  held,  that  since,  by  the  statute  of  frauds,  an  assignment 
must  be  signed,  the  want  of  the  mark  of  the  defendant  upon  the  postea  was  a 
fatal  defect;  but  as  another  indictment  had  been  found  against  the  defendant, 
the  court  gave  no  judgment,  but  ruled  that  the  defendant  should  plead  to  the 
signing.  But  Ld.  Holt  held,  that  if  the  indictment  had  been  for  forging  a  deed 
of  assignment  (Mr.  East,  in  his  Pleas  of  the  Crown,  776,  cites  Salk.  342,  and 
questions  this  point),  and  the  deed  had  been  set  forth  without  any  mark  or  sig- 
nature, that  might  have  been  good,  because  signing  is  not  necessary  to  a  deed  ; 
for  in  former  times  they  were  sealed  only,  and  not  signed.  Salk.  342,  Pasch.  2 
Ann." 

Where  the  instrument  forged  was  a  bond,  purporting  to  be  attested  by  one  A. 
B.,  and  the  indictment  charged  that  the  defendant  ''  wittingly  and  willingly  did 
forge  and  cause  to  be  forged  a  certain  paper  Avriting,  purporting  to  be  a  bond, 
and  to  be  signed  by  one  C.  U.,  with  the  name  of  him  the  said  C.  D.,  and  to  be 
sealed  with  the  seal  of  the  said  C.  I).  ;"  and  the  tenor  of  the  bond,  with  a  sub- 
scribing witness  was  set  forth,  but  did  not  charge  that  the  bond  purported  to  be 
attested  by  one  A.  B.,  a  motion  to  arrest  the  judgment  on  this  account  was  over- 
ruled, on  the  ground  that  nothing  need  be  averred  in  the  indictment  which  is 
not  necessary  to  constitute  the  offence  charged.  It  is  not  necessary,  it  is  said, 
that  there  should  be  a  subscribing  witness  to  a  bond,  and  if  there  be  one,  it  is 
not  his  signature,  but  the  signing,  stealing,  and  delivery  by  the  obligor,  that  con- 
stitute the  instrument  a  deed.      State  ;;.  Ballard,  2  Murph.  186. 

It  seems,  in  all  cases,  to  be  sufficient  to  set  out  that  part  of  a  written  docu- 
ment which  comprehends  the  particular  instrument  forged,  though  connected 
with  other  matter.  Thus,  in  an  indictment  for  publishing  a  forged  receipt  for 
money,  the  receipt  alone  was  set  forth,  as  follows  :  "  18th  March,  1733,  received 
the  contents  above,  by  me,  Stephen  Withers;"  and,  upon  its  appearing  in  evi- 
dence that  the  above  was  forged  at  the  bottom  of  a  certain  account,  it  was  ob- 
jected that  the  account  itself  should  have  been  set  forth,  for  otherwise,  it  would 
not  appear  that  it  was  a  receipt  for  money.  But  all  the  judges  held  the  indict- 
ment to  be  suthcient ;  for  it  was  laid  to  be  a  forged  receipt  for  money,  under  the 
hand  of  S.  W.,  for  £1  4s.,  and  the  bill  itself  was  only  evidence  to  make  out  that 
charge.     R.  v.  Testick,  1  East,  181  ;  East,  P.  C.  925. 

How  the  forged  instrument  should  he  shown  to  he  of  the  kind  prohibited. 

It  must  be  shown  on  the  face  of  the  indictment,  by  proper  averments,  that  the 
instrument  forged  is  of  the  particular  kind  prohibited,  in  respect  to  Avhich  an  indict- 
ment lies.  Under  a  subsequent  head  [infra,  form  415)  will  be  given  a  summary  of 
the  principal  terms  used  in  this  connection,  viz. ,  ' '  receipt, "  "  acquittance, "  "  bill 
of  exchange,"  "  promissory  note,"  "  bank  note,"  "  warrant,  order,  and  request," 
"deed,"  "obligation."  Where  a  full  setting  forth  of  a  document  is  given, 
its  technical  title  need  not  be  avei-red.  Wh.  Cr.  PI.  &  Pr.  §  184  ;  Wh.  Cr.  L. 
8th  ed.  §  728.  But  where  only  the  forgery  of  documents  of  a  particular  class  is 
indictable  by  statute,  then  the  document  must  be  averred  to  be  of  such  class. 
Wh.  Cr.  L.  8th  ed.  §  728  and  cases  there  cited.  The  indictment  must  show  the 
document  to  be  capable  of  being  used  in  legal  procedure,     Wh.  Cr.  L.  8tli  ed. 

278 


FORGERY,   COINING,   UTTERING,   ETC.  (264) 

§  739.     In  other  words,  it  must  be  such  that  it  could  have  been  used  as  an  instru- 
ment of  fraud. 

"  A  forged  instrument  cannot  in  strictness  be  called  by  the  name  of  the  real 
instrument  which  it  assumes  to  be ;  an  instrument  purporting  to  be  a  bond,  or 
writing  obligatory,  is  not  such,  for  no  one  is  bound  by  it ;  and  a  forged  writing, 
purporting  to  be  a  will,  ought  not  in  strictness  to  be  called  a  will,  for  it  is  not  so 
in  any  sense,  and  can  have  no  legal  operation  whatever."      Stark.  C.  P.  113. 

"But  many  statutes  describing  the  offence  of  forgery  use  the  words,  'and  if 
any  person  shall  forge  any  Wi7/,  or  bond  (22  Geo.  II.  c.  25),  or  writing  ohlif/atory, 
etc.]'  and  therefore  it  may  be  averred  in  the  indictment,  that  the  defendant 
forged  the  will  (R.  v.  Birch  and  Martin,  Leach,  92  ;  East,  P.  C.  980),  bond,  or 
writing  obligatory.  Dunnett's  case,  East,  P.  C.  985.  But  it  is  in  all  cases 
proper,  and  seemingly  more  correct,  to  aver,  that  the  defendant  forged  and 
counterfeited  a  certain  paper  writing  imrportinfj  to  be  the  last  will  {or  other  in- 
strument ichose  forgery  is  penal).  In  the  case  of  the  King  v.  Birch  and  Martin, 
it  was  so  averred,  and  the  judges  held,  that  although  the  statute  uses  the  words 
'shall  forge  a  will,'  it  was  sufficient  to  lay  it  either  way.  R.  v.  Birch  and  Mar- 
tin, Leach,  92 ;  East  P.  C.  980  ;  2  Bl.  R.  790.  And,  therefore,  in  general,  if  it 
can  be  collected  from  the  forged  writing  itself  that  it  assumes  to  be  a  bond,  etc., 
it  may  be  averred  in  the  indictment,  either  that  the  defendant  forged  a  certain 
bond,  or  that  he  forged  a  certain  writing  purporting  to  be  a  bond.  Thus,  in 
Taylor's  case  (R.  v.  Taylor,  Leach,  255;  East,  P.  C.  97  7),  the  defendant  was 
charged  with  forging  a  receipt  for  the  sum  of  £20,  as  followeth  :  '  Re'd  R.  Wil- 
son.' And  in  Testicle's  ease  (1  East,  181),  the  tenor  set  out  was  :  '  Received 
the  contents  above,  by  me,  William  Withers ;'  and  this  was  holden  to  be  prop- 
erly described  as  a  receipt.  In  fact,  in  such  case  the  very  terms  of  the  instru- 
ment showed  it  to  be  a  receipt. 

'■^  The  purport  of  a  writing  is  that  which  appears  on  the  face  of  that  writing 
(R.  V.  Gilchrist,  Leach,  753)  ;  if,  therefore,  the  forged  writing  assumes  in  terms 
to  be  a  will,  bond,  or  receipt,  it  may  be  described  as  purporting  to  be  a  will, 
bond,  or  receipt.  But  in  alleging  the  purport  of  a  forged  writing,  great  caution 
is  necessary  ;  for  unless  it  can  be  collected  plainly  from  the  terms  of  the  writing 
set  forth  that  it  is  in  form  and  assumes  to  be  that  particular  Instrument  which, 
according  to  the  allegation,  it  purports  to  be,  the  indictment  will  be  vicious.  R. 
V.  Huntei-,  R.  &  R.  510;  R.  v.  Birkett,  lb.  251.  Thus,  in  William  Jones's  case 
(Leach,  243  ;  East,  P.  C.  883  ;  Doug.  302),  the  indictment  alleged,  '  purporting 
to  be  a  bank  note ;'  the  writing  set  forth  was  as  follows  :  '  No.  F.  946.  I  prom- 
ise to  pay  John  Wilson,  Esquire,  or  bearer,  ten  pounds,  London,  March  4th, 
1776,  for  self  and  company  of  yny  bank  in  England,  entered,  S.  Jones.'  And 
the  court  were  of  opinion  that  the  paper  writing  did  not  purport  to  be  a  bank 
note,  and,  therefore,  that  the  indictment  was  repugnant.  So  an  Indictment  for 
forf)-in"f  a  bill  of  exchange,  as  purporting  to  be  directed  to  John  A'ing,  by  the  name 
and  addition  of  John  -Ring,  Es(^.,  was  for  the  same  reason  holden  to  be  vicious. 
R.  V.  Jeremiah  Reading,  Leach,  672.  The  same  was  holden  of  an  indictment 
which  described  the  subscription  C.  Oliver  as  purporting  to  be  the  name  of 
Christopher  Oliver.  R.  v.  Reeves,  Leach,  933.  The  objection  was  at  first  over- 
ruled by  Heath  and  Lawrence,  JJ.,  and  Thomson,  B.,  who  thought  that  there 
was  a  shade  of  difference  between  this  case  and  that  of  Gilchrist ;  and  it  does 
not  appear  what  the  ultimate  opinion  was.  In  Lovell's  case  (East,  P.  C.  990  ; 
Leach,  282),  the  indictment  ran  thus:  'purporting  to  be  directed  to  Messrs. 
Drummond  and  Co.,  Charing  Cross,'  by  the  name  of  Mr.  Drummond  ;  and  the 
indictment  was  held  to  be  good,  but  it  does  not  appear  that  the  objection  \yas 
taken."  An  indictment  for  uttering  as  true  a  forged  promissory  note,  purporting 
to  be  made  by  A.,  payable  to  B.,  or  order.  Is  proved  by  evidence  of  the  uttering 
of  such  note  with  the  indorsement  of  B.'s  name  on  the  back  thereof.  Com.  v. 
Adams,  7  Met.  50. 

"In  Gilchrist's  case  (Leach,  753;  East,  P.  C.  982),  the  Indictment  charged 
the  defendant  with  forging  a  paper  writing,  etc.,  purporting  to  have  been  signed 

279 


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OFFENCES    AGAINST    PROPERTY. 


bv  Thomas  Exon,  clerk,  and  to  be  directed  to  George  Lord  Kinnnird,  William 
Morland,  and  Tliomas  Hammersley,  of,  etc.,  bankers  and  partners,  by  the  name 
and  description  of  Messrs.  Rawson,  Morland,  and  Hammersley  ;  the  tenor  of  the 
bill  was  then  set  out  as  follows  :  '  Messrs.  Raicson,  Morland,  and  Hnmmerslei/, 
please  to  pay,  etc.  (signed)  T.  Exon;'  and  the  indictment  was,  by  the  ten 
judges  present  at  the  conference,  holden  to  be  repugnant  and  defective,  for  it 
could  not  purport  to  be  directed  to  Lord  Kinnaird,  since  his  name  did  not  ap- 
pear upon  the  bill. 

"And  with  respect  to  the  -word  pwport,  it  is  to  be  observed  generally,  that  its 
use  is  to  show  that  the  forged  writing  falls  within  the  prohibited  description  ;  and 
therefore  no  other  description  should  be  given  under  the  word  purport,  except  of 
the  particular  nature  of  the  forged  writing,  as  that  it  purports  to  be  a  bond,  a  bill 
of  exchange,  a  bank  note,  or  the  like.  Any  fiirtlier  description  is  highly  objec- 
tionable, since  it  is  unnecessary,  and  exposes  the  record  to  great  danger  from 
variance.     See  ^Ir.  Justice  BuUer's  observations,  R.  v.  Gilchrist,  Leach,  75-3. 

"And  the  same  objection  applies  to  giving  any  other  description  of  the  written 
instrument  (whose  tenor  is  afterwards  set  forth),  beyond  that  of  its  general 
nature. 

"  The  defendant  was  indicted  for  forging  and  uttering  a  bill  of  exchange, 
recjuiring,  etc.,  and  signed  hy  Henry  Hutchinson,  for,  etc.  Upon  the  trial,  the 
prosecutor  proved  that  the  signature  Henry  Hutchinson  was  forged  ;  it  was  tlien 
objected  tliat  the  indictment,  averring  it  to  have  been  signed  by  him,  was  dis- 
proved ;  and  so  the  judges  held,  upon  reference  to  them  after  conviction.  East, 
P.  C  985.  And  an  indictment  will  be  defective,  if  it  allege,  after  describing 
the  forged  Avriting,  'by  which  A.  is  bound  to  B.,'  for,  since  it  is  forgery,  A. 
could  not  be  bound  by  it.     Bac.  Abr.  tit.  Ind.  ,556."      Stark.  C.  P.  117. 

Where  a  bill  of  parcels  is  of  this  tenor,  viz.  :  "Mr.  J.  L.  bought  of  E.  and 
O. — the  above  charged  to  G.  C,"  the  ])urchaser.  J.  L.,  added  these  words, 
"  by  order  of  C.  C,"  it  was  hehl,  that  tiie  addition  amounted  to  an  acquittance 
or  discharge,  and  was  a  forgery  within  the  Massachusetts  statute.  Com.  v.  Ladd, 
15  Mass.  52G.     For  other  points  see  notes  to  form  415. 

"  An  indictment  charged  the  defendant  witli  forging  a  bond  and  writing  obli- 
gatory. The  statute  upon  which  it  was  founded  mentions  bond  and  also  writing 
obligatory.  The  instrument  set  forth  purported  to  be  a  bond,  but  the  judge 
held  that  it  was  properly  described.  R.  v.  Dunnett,  East,  P.  C.  985.  For  a 
bond  is  a  writing  obligatory,  and  at  all  events,  semble,  the  subsequent  descrip- 
tion would  be  but  surplusage."     Stark.  C.  P.  117. 

An  indictment  charging  the  forging  of  "  a  certain  bond,"  instead  of  a  certain 
paper  writing  purporting  to  be  a  bond,  is  good.  State  v.  Gardiner,  1  Ire.  27. 
See  note  to  form  415. 

So  of  an  indictment  which  mentions  the  instrument  forged  as  an  instrument 
of  writing  purporting  to  be  an  order  drawn  by  A.  on  B.  for  nine  dollars.  Mc- 
Guire  V.  State,  3  7  Ala.  161. 

"In  Bigg's  case,  the  prisoner  was  charged  with  erasing  an  indorsement  on  a 
bank  note  ;  it  turned  out  in  evidence  that  the  inscription  charged  to  have  been 
erased  liad  been  written,  according  to  the  custom  of  the  bank,  upon  the  inside 
and  face  of  the  bill.  The  jury  found  specially,  that  an  inscription  so  written 
was  commonly  called  an  indorsement,  and  a  majority  of  the  judges  held,  that  the 
description  was  correct."      Stark.  C.  P.  117. 

An  order  on  the  cashier  of  the  Bank  of  the  United  States  is  evidence  in  sup- 
port of  an  indictment  for  forging  an  order  on  the  cashier  of  the  corporation  of 
the  Bank  of  the  United  States.     U.  S    i'.  Hinman,  1  Bald.  292. 

Instruments  of  other  specific  denominations  may,  it  seems,  be  described  as 
waiTants  or  orders,  if  they  be  in  effect  such.  Lockett's  case.  East,  P.  C.  940  ; 
Leach,  110;  R.  i>.  Sheppard,  Leach,  265  ;  see  infra,  415,  note.  And  a  bill  of 
exchange,  it  has  been  held,  may  be  laid  a<  an  order  for  the  payment  of  money. 
WlUoughby's  case.  East,  P.  C.  944.  "  Wiiere  the  forged  instrument  is  actually 
within  the  meaning  of  the  statute  on  which  you  intend  framing  your  indict- 

280 


FORGERY,    COINING,    UTTERING,    ETC.  (264) 

ment,"  says  Mr.  Archbold,  C.  P.  357,  "but  does  not  sufficiently  appear  to  be 
so  on  the  face  of  it,  you  must,  it  tlie  instrument  be  set  out,  not  only  set  out  a 
literal  copy  of  it  in  the  indictment,  but  must  also  add  such  averments  of  extrin- 
sic facts  as  may  be  necessary  to  make  it  appear  upon  the  face  of  the  record  that 
the  forged  instrument  is  one  of  those  intended  by  and  described  in  the  statute. 
Thus,  for  instance,  where,  by  the  usage  of  a  public  office,  the  bare  signature  of 
a  party  upon  a  navy  bill  operated  as  a  receipt,  an  indictment  for  forging  such  a 
receipt,  setting  forth  the  navy  bill  and  indorsement,  and  charging  the  defendant 
with  having  forged  'a  certain  receipt  of  money,'  to  wit,  the  sum  of  tAventy-five 
pounds,  mentioned  and  contained  in  the  said  paper  called  a  navy  bill,  which 
forged  receipt  was  as  follows  :  that  is  to  say — '  William  Thornton,  William 
Hunter,'  "  was  holden  bad,  because  it  did  not  show,  by  proper  averments,  that 
these  signatures  imported  a  receipt.  R.  i'.  Hunter,  2  Leach,  624  ;  2  East,  P.  C. 
928.  So,  where  an  indictment  charged  the  defendant  with  forging  a  receipt  in 
the  handwriting  of  Henry  Hargreaves,  as  thus:  "Received,  H.  H.,"  it  was 
holden  that  the  indictment  was  bad,  because  there  was  nothing  to  show  what 
H.  H.  meant.  R.  v.  Barton,  1  Mood,  C.  C.  141.  See  R.  v.  Testick,  1  East, 
181,  n.  ;  ante,  p.  274  (see  Archbold's  C.  P.  p.  46).  So  the  words,  "settled, 
Sam.  Hughes,"  written  at  the  foot  of  a  bill  of  parcels,  were  hehl  of  themselves 
to  import  a  receipt  of  acquittance,  and  that  no  averment  was  necessary  that  the 
word  "settled"  meant  a  receipt  or  ac(juittance.  R.  v.  Martin,  1  Mood.  C.  C. 
483  ;  7  C.  &  P.  549  ;  overruling  R.  v.  Thompson,  2  Leach,  810.  And  see  R.  v. 
Houseman,  8  C.  &  P.  180;  R.  l\  Vaughan,  lb.  276;  Reg.  v.  Bordman,  2  M.  & 
Rob.  147  ;  see  infra,  415,  note. 

An  indictment,  which  charged  the  false  making  to  have  been  In  the  alteration' 
of  an  order,  given  by  the  defendant,  without  charging  that  the  alteration  was 
made  after  it  was  circulated  and  had  been  taken  up  by  him,  was  held  to  be  erro- 
neous. State  V  Greenlee,  1  Dev.  523.  For  the  same  reason,  an  indictment  for 
forging  a  deed  must  aver  that  it  was  sealed.  3  Keb.  388  ;  3  Inst.  1G9  ;  Smith's 
case,  3  Salk.  171  ;  though  see  Penna.  v.  Misner,  Add.  R.  44. 

"An  indictment  for  forging  an  order  for  the  delivery  of  goods  must  show 
that  the  person  whose  name  is  subscribed  had  authority  to  make  such  an  order. 
East,  P.  C.  958;  2  Leach,  3d  ed.  611.  But  it  is  sufficient,  if  the  order  purport 
that  the  party  sending  it  had  such  authority,  altliough,  in  fact,  he  had  not. 
Fost.  119  ;  East,  P.  C.  940.  And  it  must,  for  the  same  reason,  appear  that  the 
person  to  whom  the  order  is  directed,  had  possession  of  the  goods."  Stark.  C. 
P. 119. 

An  indictment  for  forging  an  acquittance  need  not  allege  that  it  was  pre- 
sented, or  delivered  to  any  person  as  a  genuine  acquittance  for  goods  delivered, 
and  in  consideration  thereof.     Com.  v.  Ladd,  15  Mass.  526. 

"If  the  instrument,  as  stated  with  proper  averments  u])on  the  record,  be  such 
as  if  genuine  would  be  illegal,  the  indictment  will  be  vicious  and  ineffectual; 
and  therefore,  in  the  case  of  the  King  v.  Moffat,  l^each,  483,  for  forging  a  bill  of  ex- 
change for  the  pajment  of  three  guineas,  without  specifying  the  payee's  place  of 
abode,  the  judges  wei*e  of  opinion,  that  the  forgery  did  not  amount  to  a  capital 
offence;  since,  by  the  stats.  15  Geo.  III.  c.  51,  and  17  Geo.  III.  c.  30,  made 
perpetual  by  27  Geo.  III.  c.  16,  the  bill  of  exchange,  if  read,  would  not  have 
been  valid.     Wall's  case.  East,  P.  C.  953. 

"  And  in  Smith's  case  (3  Salk.  371),  above  alluded  to,  the  court  were  of  opin- 
ion, that  an  indictment  for  forging  an  assignment  would  be  vicious,  unless  it 
showed  that  the  assignment  was  signed.  7'Ae  distinction  seems  to  he  this  :  where 
the  instrument  appears  to  be  valid,  an  indictment  may  be  maintained,  although, 
from  some  collateral  defect,  that  instrument,  if  genuine,  could  never  legally 
have  been  put  in  use ;  otherwise,  where  the  defect  is  apparent  on  the  face  of 
the  Instrument.  Per  Eyre,  J.,  R.  v.  Jones  and  Palmer,  East,  P.  C.  991  ;  Leach, 
405.  Hence  an  indictment  has  been  holden  to  be  maintainable  for  forging  a 
conveyance,  though  the  estate  was  described  by  the  wrong  name  (Japiiet 
Cooke's  case,  Str.  901  ;   Fitzg.  57  ;  Mastermau's  notes)  ;  for  forging  a  protec- 

281 


(264) 


OFFENCES  AGAINST  PROPERTY. 


tion  in  the  name  of  one  as  member  of  Parliament  who  was  not  so  (R.  v.  Dea- 
kins,  1  Sid.  142)  ;  for  forging  and  publishing  a  writing  as  the  last  will  of  a  person 
still  living  (R.  v.  Murphy,  10  St.  Tr.  183;  R.  r.  Sterling,  Leach,  117  ;  Cogan's 
case,  2  Leach,  503)  ;  for  forging  an  order  for  the  payment  of  a  seaman's  prize 
money,  though  in  fact  the  seaman  was,  at  the  time  the  note  bore  date,  in  a  situa- 
tion which  rendered  the  order  invalid  under  the  stat.  (R.  v.  M'Intosh,  East,  P. 
C.  956  ;  32  Geo.  III.  c.  34,  s.  2)."     Starkie,  lit  supra. 

When  a  document  is  incomplete  on  its  face,  and  does  not  apparently  fall  under 
the  head  of  documents  which  are  subjects  of  forgery,  the  indictment  must  supply 
the  necessary  explanation.     See  cases  in  Wh.  Cr.  L.  8th  ed.  §  740. 

( /')  The  manner  of  averring  intent  generally  has  been  already  examined  in 
notes  to  form  2.  In  forging  it  is  sufficient  to  allege  a  general  intention  to  defraud 
a  particular  person,  rohich  intention  must  he  proved  as  laid.  Powell's  case,  Leach, 
90  ;  R.  V.  Ellsworth,  2  East,  P.  C  986  ;  and  see  East,  P.  C.  988;  R.  v.  Powell,  12 
Cox,  C.  C.  230;  People  v.  Rathbun,  21  Wend.  509  ;  State  y.  Odel,  2  Tr.  Con. 
Rep.  S.  C.  758  ;  Rose.  Cr.  Ev.  400 ;  3  Brevard,  552  ;  State  v.  Greenlee,  1  Dev. 
523  ;  Wh.  Cr.  L.  §§  297,  1492.  It  is  not  necessary,  at  common  law,  however, 
to  allege  the  intention  to  defraud,  when  it  may  be  gathered  from  other  averments  ; 
unless  in  cases  where  the  statute  upon  which  such  indictment  is  founded  requires 
the  use  of  the  terms.     State  i\  Calvin,  etc.,  Charlt.  151. 

"  But  it  is  not  essential,  either  in  indictments  tor  obtaining  money  under  false 
pretences,  or  in  case  of  forgery,  after  setting  out  the  false  pretences  or  forged 
writing,  to  aver  the  particular  means  by  which  the  false  pretences  were  made 
available  in  the  one  case,  or  how  the  forged  writing  was  to  be  made  the  instru- 
ment of  fraud  in  the  other.  Thus  an  indictment  for  (causing  and  procuring  a 
counterfeit  bank  note  to  be  offered  to  be  passed,  Avithout  stating  by  whom  or  how 
the  accused  caused  and  procured  it  to  be  done,  is  sufficiently  certain  and  good." 
Stark.  C.  P.  122  ;   see  also  Brown  v.  Com.,  2  Leigh,  769. 

"  So,  in  the  case  of  R.  v.  Young,  3  T.  R.  176,  above  referred  to,  after  stating 
the  false  pretence,  namely,  a  wager,  which  was  pretended  to  have  been  betted 
upon  a  foot-race,  the  indictment  averred  that  the  defendant,  under  color  and  pre- 
tence of  having  made  the  bet,  obtained  from  the  prosecutor  the  sume  of  twenty 
guineas,  as  a  part  of  such  pretended  debt,  with  intent  to  defraud  and  cheat  him 
thereof,  without  stating  by  what  particular  inducement  he  obtained  the  money. 
And  in  the  case  of  forgery,  it  is  sufficient  to  aver  generally,  that  the  defendant 
intended  to  defraud  a  particular  person,  without  showing  upon  the  record  how  he 
intended  to  do  so.  Powell's  case.  Leach,  90  ;  East,  P.  C.  989  ;  Ellsworth's  case, 
2  East,  P.  C.  986;   Crook's  case.  East,  P.  C.  992;  Stark.  C.  P.  122." 

Where  the  offence  was  forgery  of  a  deposition,  with  intent  to  procure  a  divorce, 
it  is  not  necessary  to  aver  an  intent  to  defraud.  State  v.  Kimball,  50  Maine, 
409. 

When  the  statute  includes  only  banks  duly  incorporated,  then  the  indictment 
must  aver  the  incorporation  of  the  bank  alleged  to  have  been  defrauded.  It  is 
otherwise  when  the  statute,  in  cases  of  home  banks,  does  not  make  the  case  of 
the  prosecution  dependent  upon  incorporation.  The  pleader,  in  any  case,  may 
charge  the  intent  to  have  been  to  defraud  the  party  on  whom  the  note  was  passed  ; 
and  if  so  the  incorporation  of  the  bank  need  not  be  averred.  See  for  authorities 
AVh.  C.  L.  8th  ed.  §  741.  Though  a  party  defrauded  must  be  specified,  it  is 
not  necessary  that  the  specification  should  include  all  the  parties  defrauded.  It 
is  enough  if  any  one  of  them  be  averred.     See  cases  cited  in  Wh.  Cr.  L.  8th  ed. 

All  the  partners  in  a  firm  need  not  be  set  out  in  averring  the  intent  to  defraud. 
Thus,  where  the  first  count  charged  the  ofiience  to  have  been  committed  with 
intent  to  defraud  D.  L.  and  D.  L.  Jr.,  and  the  second  count  stated  the  offence  to 
have  been  committed  with  intent  to  defraud  the  president  and  dii'ectors  of  said 
com[)any,  the  fourth  count,  etc.,  with  an  intent  to  defraud  D.  L.  ;  the  court,  on 
motion  in  arrest  of  judgment,  held,  that  the  omission  of  one  of  the  partners  in 
one  count,  and  of  two  of  them  in  another,  was  not  fatal ;  for  an  acquittal  on  such 

282 


FORGERY,    COINING,    UTTERING,    ETC.  (265) 

(265)  First  count.  Forging  at  common  law  a  certificate  of  an 
officer  of  the  American  army.,  in  1111  .^  to  the  effect  that  he 
had  received  certain  stores,  etc.{h) 

That  C.  S.,  late  of  the  county  aforesaid,  yeoman,  on,  etc.,  and 
long  before  and  since,  was  a  clerk  to  the  department  of  the  com- 
missary-general of  military  stores  in  the  armies  of  the  United 
States  of  America,  and  intrusted  and  employed  by  Colonel  B.  F., 
the  commissary-general  of  military  stores  in  the  armies  aforesaid, 
and  by  the  honorable  Continental  Congress,  to  make  payments 
and  take  receipts,  bills  of  parcels,  and  other  vouchers  for  mili- 
tary stores,  and  for  divers  articles  necessary  and  fitting  in  the 
preparation  of  military  stores  purchased  for  the  use  of  the  armies 
aforesaid,  and  to  keep  the  accounts  thereof.  And  the  jurors 
aforesaid,  upon  their  oaths  and  affirmations  aforesaid,  do  further 
present,  that  the  said  C.  S.,  on,  etc.,  at  the  city  of  Philadelphia, 
in  the  county  aforesaid,  contriving  and  intending  falsely  and 
fraudulently  to  deceive  and  defraud  the  United  States  aforesaid, 
with  force  and  arms,  falsely,  wickedly,  and  unlawfully  did  make, 
forge,  and  counterfeit,  and  cause  to  be  made,  forged,  and  coun- 
terfeited, a  certain  writing  purporting  to  be  a  receipt  for  one 
thousand  and  twenty  pounds  and  fifteen  shillings,  and  purport- 
ing to  be  sio;iied  in  the  name  of  one  A.  F.,  in  the  words  and  fig- 
ures  following,  to  wit,  "  3.  Received  1st  July,  1777,  of  Col.  B.  F., 
C.  G.  U.  S.,  one  thousand  and  twenty  pounds,  fifteen  shillings, 
for  820  bayonet  belts,  and  920  cartouch  boxes  for  the  use  of  the 
army. 

"—£1020  15—  A.  F." 

to  the  evil  example  of  all  others  in  like  case  ofiTending,  to  the 

an  indictment  will  always  be  a  bar  to  another  prosecution  for  the  same  forgery, 
though  laid  with  intent  to  injure  some  other  person.  People  v.  Curling,  1  Johns. 
R.  320  ;  see  R.  v.  Hanson,  1  C.  &  M.  ;}34.     Infra,  2dii[d). 

(fj)  This  averment  is  unnecessary  in  statutory  forgeries,  and  does  not  seem  to 
be  required  at  common  law  (People  v.  Rynders,  12  Wend.  42,5).  In  fact,  indict- 
abllity  does  not  depend  upon  damage  having  been  done.  That  the  document 
was  one  capable  of  doing  damage  is  enough.  R.  r.  Goate,  1  Ld.  Ray.  737  ;  R.  v. 
Holden,  R.  &  R.  154  ;  Com.  v.  Ladd,  15  Mass.  526  ;  People  v.  Stearn,  21  Wend. 
534  ;  West  v.  State,  2  Zab.  292  ;  Hess  v.  State,  5  Oh.  St.  5. 

(h)  Res.  V.  Sweers,  1  Dall.  41.  The  objection  taken  to  this  and  the  su(.'ceed- 
ing  indictment,  that  the  intent  to  defraud  the  United  States  was  vicious,  was 
overruled  by  McKean,  C.  J.,  and  the  defendant  sentenced.  The  trial,  it  should 
be  observed,  was  in  the  supreme  court  of  Pennsylvania. 

283 


(267)  OFFENCES  AGAINST  PROPERTY. 

great  damage  of  the  United  States,  and  against,  etc.  (^Conclude 
as  in  book  1,  chapter  3.) 

(266)  Second  count.     Publishing  the  same. 

And  the  jurors  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  the  said  C.  S.,  contriving  and 
intending  the  said  United  States  falsely  and  fraudulently  to 
deceive  and  defraud,  then  and  there,  with  force  and  arms,  the 
said  writing  so  as  aforesaid  falsely  made  and  counterfeited,  pur- 
porting to  be  a  receipt  for  the  sum  of  one  thousand  and  twenty 
pounds  and  fifteen  shillings,  and  purporting  to  be  signed  in  the 
name  of  the  said  A.  F.,  wickedly,  unlawfully,  and  fraudulently 
did  publish  and  cause  to  be  published  as  and  for  a  true  writing 
and  receipt  of  the  said  A.  F.  ;  which  said  falsely  forged  and 
counterfeited  writing  is  in  the  words  and  figures  following,  to 
wit,  "3.  Received  1st  July,  1777,  of  Colonel  B.  F.,  C.  G.  U.  S. 
one  thousand  and  twenty  pounds  fifteen  shillings,  for  820  bay- 
onet belts,  and  920  cartouch  boxes  for  the  use  of  the  array. 

"—£1020  15—  A.  F." 

(he  the  said  C.  S.,  at  the  time  of  publishing  the  said  false  and 
counterfeit  writing,  there  by  him  in  form  aforesaid,  well  know- 
ing the  said  writing  to  have  been  falsely  forged  and  counter- 
feited as  aforesaid),  to  the  evil  example  of  all  others  in  like  case 
ofiending,  to  the  great  damage  of  the  said  United  States,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(267)  Forgery.  Altering  a  certijicate  of  an  officer  of  the  American 
army  in  1778,  to  the  effect  that  he  had  received  for  the  use  of 
the  troops  at  Carlisle  certain  articles  of  clothing.  Offence  laid 
at  common  law.,  the  intent  being  to  defraud  the  United  States.{i) 

That  C.  S.,  late  of  the  county  aforesaid,  yeoman,  on,  etc.,  was 
a  deputy  commissary-general  of  military  stores  in  the  armies  of 
the  United  States  of  America,  and  entrusted  and  employed  by 
Colonel  B.  F.,  the  commissary-general  of  military  stores  in  the 
armies  aforesaid,  and  by  the  honorable  Continental  Congress,  to 
make  purchases  of  military  stores  and  of  divers  other  articles 

[i)  R.  V.  Sweers,  1  Dall.  41. 
284 


FORGERY,   COINING,   UTTERING,   ETC.  (267) 

necessary  and  fitting  in  the  preparation  of  military  stores,  for 
the  use  of  the  armies  aforesaid,  and  to  make  payments  and  take 
receipts,  bills  of  parcels,  and  other  vouchers  therefor.  And  the 
jurors  aforesaid,  upon  their  oaths  and  aflirmations  aforesaid,  do 
Bay,  and  further  present,  that  the  said  C  S.,  on,  etc.,  at  the  city 
of  Philadelphia,  in  the  county  aforesaid,  having  in  his  custody 
and  possession  a  certain  bill  of  parcels  or  account,  with  a  certifi- 
cate and  receipt  all  in  writing,  for  a  parcel  or  quantity  of  flannel 
cloth  by  him  purchased  of  one  M.  D.,  for  the  use  of  the  labora- 
tory of  the  same  armies,  and  which  said  writing  was  in  the 
words,  figures,  ciphers,  and  letters  following,  that  is  to  say  : — 
"  U.  S.  A. 

To  M.  D.,  Dr. 
"  1778,  Feb.  4th.     To  57  &  a  qr.  yds.  flannel,  32s.  6^.  £83     5     7 

To  9  yds.  do.       35.s.  15   15     9 

To  107  &  3  qr.  yds.      do.       b2s.  Qd.  282  16  10 


£381  17  5" 


"I  do  certify  that  the  above  was  purchased  and   delivered  to 
me  for  the  use  of  the  laboratory  at  Carlisle. 

I.  C,  Cap.  of  the  Artillery." 
And  on  the  back  side  of  which  said  writing  is  indorsed  and  writ- 
ten the  words  following  :  "  Received  the  within  contents  in  full, 
M.  D. ;"  he  the  said  C.  S.,  afterwards,  to  wit,  on  the  same  day 
and  year  aforesaid,  at  Philadelphia  aforesaid,  in  the  county  afore- 
said, with  force  and  arms,  the  said  bill  of  parcels  or  writing 
falsely,  fraudulently,  and  deceitfully  did  alter  and  cause  to  be 
altered,  by  falsely  making,  forging,  and  adding  the  figure  4  to 
and  before  the  figure  9,  in  the  second  item  of  the  said  bill  of 
parcels  or  writing,  which  figures  and  letters  did,  before  such  last 
mentioned  forgery,  import  and  signify  nine  yards,  but  by  reason 
and  means  of  such  last  mentioned  forgery  and  addition  did  be- 
come, import,  and  signify  forty-nine  yards  ;  and  also  by  forging 
and  altering  the  figure  1,  in  the  sum  of  the  said  second  item  in 
the  bill  of  parcels  or  writing  aforesaid,  to  the  figure  8  ;  which 
figures  did,  before  such  last  mentioned  alteration  and  forgery, 
import  and  signify  fifteen  pounds  and  fifteen  shillings,  but  by 
reason  and  means  of  such  last  mentioned  forgery  and  alteration 
did  become,  import,  and  signify  eighty-five  pounds  and  fifteen 

285 


(268)  OFFENCES  AGAINST  PROPERTY. 

shillings;  and  also  by  falsely  forging  and  altering  the  figure  3 
to  the  figure  4,  and  the  figure  8  to  the  figure  5,  in  the  sum  total 
or  amount  of  the  said  bill  of  parcels  or  writing  ;  which  figures 
did,  before  such  last  mentioned  forgery  and  alteration,  import 
and  signify  three  hundredandeighty-onepounds,  seventeen  shil- 
lings, and  five  pence,  but  by  reason  and  means  of  such  last  men- 
tioned forgery  and  alteration  did  become,  import,  and  signify 
four  hundred  and  fifty-one  pounds,  seventeen  shillings,  and  five 
pence,  with  intention  to  defraud  the  United  States  of  America 
aforesaid,  of  seventy  pounds,  of  lawful  money  of  Pennsylvania, 
to  the  evil  example  of  all  others  in  like  case  ofl:ending,  to  the 
great  damage  of  the  said  United  States,  and  against,  etc.  {Co7i- 
clude  as  in  hook  1,  chapter  3.) 

(268)  Forgery.    Altering  and  defacing  a  certain  registry  and  record^ 
etc.,  under  the  Pennsylvania  act  of  17Q0.{j) 

That  H.  R.,  etc.,  at,  etc.,  aforesaid,  on,  etc.,  being  an  evil  dis- 
posed person,  and  devising,  designing,  and  intending  evil  to  the 
people  of  this  commonwealth,  under  the  pretext  of  examining 
the  enrolments,  registers,  and  records  in  the  ofiice  of  the  sur- 
veyor-general of  this  commonwealth,  on,  etc.,  aforesaid,  at  the 
county  aforesaid,  with  the  intention  to  defraud  and  deceive  one 
G.  R.,  falsely,  deceitfully,  and  corruptly  in  and  on  a  certain  reg- 
istry and  record,  then  and  there  being  and  remaining  as  a  pub- 
lic record,  in  the  ofiice  of  the  surveyor-general  of  this  common- 
wealth, to  wit,  in  book  F.,  and  on  the  page  of  the  said  book 
numbered  one  hundred  and  ninety-five,  containing  the  list  of 
returns  made  by  him,  the  said  H.  R.,  while  acting  as  deputy- 
surveyor  of  the  surveyor-general  of  this  commonwealth,  did  then 
and  there  falsely  alter  and  deface  the  registry  and  records  of  said 
office  and  of  this  commonwealth,  by  a  false  and  corrupt  inter- 
lineation made  in  writing  and  figures,  as  follows,  to  wit,  in  the 
said  book  F.,  and  on  the  page  of  said  book  numbered  therein 
one  hundred  and  ninety-five,  and  between  the  lines  of  writing 
on  said  page,  counted  from  the  upper  line  of  said  page,  includ- 
ing the  said  upper  line,  numbers  twenty-three  and  twenty-four: 

{j)  Ream  v.  Com.,  3  S.  &  R.  207.  The  judgment  of  the  quarter  sessions  of 
Dauphin  County,  passing  sentence  on  this  indictment,  was  affirmed  by  the  su- 
preme court. 

286 


FORGERY,    COINING,   UTTERING,    ETC.  (2t)8i) 

"  April,  1794,  H.  R.,  in  right  of  S.  S.,  161  acres  and  9o  perclies." 
To  the  great  damage  of  the  said  G.,  contrary,  etc.,  and  against, 
etc.     {Co7iclude  as  m  book  1,  chapter  3.) 

(268a)  Forging  loill  under  English  statute. 

That  J.  S.,  on,  etc.,  at,  etc.,  feloniously  did  forge  a  certain 
will  and  testament,  purporting  to  he  the  last  will  and  testament 
of  one  A.  B.,  with  intent  thereby  to  defraud  (certain  persons  to 
the  jurors  unknown),  against,  etc.(/.') 

(2686)  Making  a  false  entry  in  a  ynarriage  register  under  English 

statute. 

feloniously,  knowingly,  and  unlawfully  did  insert  {^'- insert 

or  cause  to  be  inserted'")  in  a  certain  register  of  marriages,  which 
was  then  by  law  authorized  to  be  kept  {'■'•  any  register  of  births^ 
bajjtisms,  marriages^  deaths^  or  burials  which  now  is  or  herecfter  shall 
be  by  law  authorized  or  required  to  be  kept,  etc.,  or  any  certified  copy 
thereof),  a  certain  false  entry  of  a  matter  relating  to  a  supposed 
marriage,  and  which  said  false  entry  is  as  follows :  that  is  to 
say  {set  it  out  ver'batim,  with  innuendoes  if  necessary  to  explain  it); 
whereas  in  truth  and  in  fact  the  said  A.  B.  was  not  married  to 
the  said  C.  D.  at  the  said  church,  on  the  said  day  of 

as  in  the  said  entry  is  falsely  alleged  and  stated ;  and  whereas, 
in  truth  and  in  fact  the  said  A.  B.  was  not  married  to  the  said 
C.  D.,  at  the  said  church  or  elsewhere,  at  the  time  in  the  said 
entry  mentioned,  or  at  any  other  time  whatsoever ;  against  the 
form,  etc. 

{2d  count  for  uttering.) feloniously  did  knowingly  and  wil- 
fully offer,  utter,  dispose  of,  and  put  off  a  copy  of  a  certain 
other  false  entry  relating  to  a  certain  supposed  marriage,  which 
said  last  mentioned  false  entry  was  before  then  inserted  in  a 
certain  register  of  marriages  by  law^  authorized  to  be  kept,  and 
which  said  last  mentioned  false  entry  is  as  follows:  that  is  to  say 
(set  it  out),  whereas  in  truth  and  in  fact  {as  above).  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  J.  S.,  at 
the  time  he  so  offered,  uttered,  disposed  of,  and  put  off  the  said 

(Jt)  Arch.  C.  P.  19th  ed.  p.  625.  The  judges  were  in  R.  v.  Tylney,  1  Den. 
319,  equally  divided  on  the  question,  whether,  in  the  absence  of  the  existence  of 
some  person  who  could  have  been  defrauded  by  the  forged  will,  a  count  charg- 
ing an  intent  to  defraud  persons  unknown  could  be  sustained. 

287 


(269)  OFFENCES    AGAINST    PROPERTY. 

copy  of  the  said  last  mentioned  false  entry,  well  knew  the  said 
last  mentioned  false  entry  to  be  false,  against,  ete.(^) 

(268c)  31aking  false  entry  in  registry  of  baptism. 

The  jurors  for,  etc.,  upon  their  oath  present,  that,  before  and 
at  the  time  of  the  commission  of  the  oftence  next  hereinafter 
mentioned,  a  certain  register  of  baptisms  solemnized  at  S.  P.'s 
church,  etc.,  by  law  authorized  and  required  to  be  kept  in  Eng- 
land, was  at  the  parish  aforesaid,  kept  by  and  in  the  custody  of 
A.  M.,  then  and  there  being  the  parish  clerk.  And  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  J. 
M.,  on,  etc.,  feloniously,  knowingly,  and  unlawfully,  did  then 
and  there,  within  the  jurisdiction  of  the  said  court,  cause  to  be 
inserted  by  one  J.  H.  S.,  in  said  register  of  baptisms,  so  kept 
as  aforesaid,  a  certain  false  entry  of  a  matter  relating  to  the 
baptism  in  the  said  church  of  a  certain  female  child  of  one  A. 
T.,  called  A.  A.  M.,  to  wit,  a  false  entry  that  the  surname  of 
the  parents  of  the  said  child  then  was  Dodd,  whereas  the  sur- 
name of  the  parents  of  the  said  child  was  not  then  Dodd,  as  the 
said  J.  B.  then  and  there  well  knew,  against  the  form  of  the 
statute,  etc.(7/i) 

(269)  For  forging^  etc.,  a  bill  of  exchange,  an  acceptance  thereof,  and 
an  indorsement  thereon.{n) 

That  (defendant),  etc.,  feloniously  did  falsely  make,  forge,  and 
counterfeit,  and  cause  and  procure  to  be  falsely  made,  forged, 
and  counterfeited,  and  willingly  aid  and  assist  in  the  false  mak- 
ing, forging,  and  counterfeiting  a  certain  bill  of  exchange ;  the 
tenor  of  which  said  false,  forged,  and  counterfeited  bill  of  ex- 
change is  as  follows,  that  is  to  say : — 

"No.         £54  Is.  Bristol,  America,  17th  Sept.,  1797. 

"  Three  months  after  sight,  pay  to  Messrs.  S.  R.  and  Son,  or 
order,  fifty-four  pounds,  one  shilling,  value  received. 

"  To  Mr.  R.  G.  A.  M. 

"  Old  Change,  London." 
with  intention  to  defraud  A.  S.,  against,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

{I)  Arch.  C.  p.  19th  ed.  p.  648.  (m)   10  Cox  C.  C.  App.  I. 

(ji)  Stark.  C,  P.  455.     ^qq  post,  278. 

288 


FORGERY,   COINING,   UTTERING,   ETC.  (272) 

(270)  Second  county  for  uttering. {o) 

Feloniously  did  utter  and  publish(2?)  as  true,  a  certain  false, 
forged,  and  counterfeited  bill  of  exchange,  which  said  last  men- 
tioned false,  forged,  and  counterfeited  bill  of  exchange  (g)  is  as 
follows,  that  is  to  say  {set  out  the  bill  as  before).,  with  intention 
to  defraud  said  A.  S.,  he  the  said  A.  B.,  at  the  same  time  he  so 
uttered  and  published  the  said  last  mentioned  false,  forged,  and 
counterfeited  bill  of  exchange  as  aforesaid,  then  and  there,  to 
wit,  on,  etc.,  at,  etc.,  well  knowing  the  same  to  be  false,  forged, 
and  counterfeited,  against,  etc.,  and  against,  etc.  {Conclude  as  in 
book  1,  chapter  3.) 

(271)  TJiird  count.,  for  forging  an  acceptance.{r) 

That  the  said  A.  B.,  having  in  his  possession  a  certain  other 
bill  of  exchange,  whose  tenor  follows,  that  is  to  say  {set  out  the 
bill),^ oil,  etc.,  with  force  and  arras, at,  etc.,  feloniously  did  falsely 
make,  forge,  and  counterfeit,  and  cause  and  procure  to  be  falsely 
made,  forged,  and  counterfeited,  and  willingly  act  and  assist  in 
the  false  making,  forging,  and  counterfeiting  on  the  said  last 
mentioned  bill  of  exchange,**  an  acceptance  of  the  said  last 
mentioned  bill  of  exchange,  to  the  tenor  following,  that  is  to 
say,  "Accepted  R.  G.,  'Nov.  13th,"  with  intent  to  defraud  the 
said  A.  S.,  against,  etc.,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(272)  Fourth  count  for  uttering  a  forged  acceptance.,  as  in  the  last 
count  to  the  *,  and  proceed: 

On  which  last  mentioned  bill  of  exchange  was  written  a  cer- 
tain false,  forged,  and  counterfeited  acceptance  of  the  said  last 
mentioned  bill  of  exchange,  whose  tenor  follows,  that  is  to  say, 

(o)   See  Harrison  v.  State,  3G  Ala.  248. 

(p)  As  to  when  there  must  be  an  averment  of  the  party  on  whom  the  note  was 
passed,  see  Wh.  Cr.  PI.  &  Pr.  Sth  ed.  §  740  ;  notes  to  form  264,  supra. 

[q]  Not  necessary  to  aver  indorsement,  note  to  form  264,  supra.  People  v.  Ah 
Woo,  28  Cal.  205. 

(7-)  It  is  usual,  in  a  count  of  this  kind,  first  to  aver  the  date,  direction,  and 
other  circumstances  of  the  bill,  and  then  set  it  out ;  but  the  first  averments  seem 
to  be  superiluous,  and  the  above  form  is  much  more  concise.  It  is  not  essential 
to  set  out  the  whole  of  the  bill,  since  the  acceptance  only  is  alleged  to  have  been 
forged.     See  Stark.  C.  P.  112,  113  ;  notes  to  form  264,  supra. 

VOL.  I.— 19  289 


(275)  OFFENCES  AGAINST  PROPERTY. 

"  Accepted  R.  G.,  Nov.  13th,"  on,  etc.,  with  force  and  arms,  at, 
etc.,  feloniously  did  utter  and  publish  as  true  the  said  last  men- 
tioned false,  forged,  and  counterfeited  acceptance  of  the  said  last 
mentioned  bill  of  exchange,  with  intent  to  defraud  the  said  A. 
S.,  he  the  said  A.  B.,  at  the  time  of  uttering  and  publishing  as 
true  the  said  last  mentioned  false,  forged,  and  counterfeited  ac- 
ceptance of  the  said  last  mentioned  bill  of  exchange,  then  and 
there,  to  wit,  on,  etc.,  at,  etc.,  well  knowing  the  said  last  men- 
tioned false,  forged,  and  counterfeited  acceptance  to  be  false, 
forged,  and  counterfeited,  against,  etc.,  and  against,  etc.  {Con- 
chide  as  in  book  1,  cha^^ter  3.) 

(273)  Fifth  county  for  forging  an  indorsement^  etc.^  as  in  the  third 
count  to  the  *,  and  -proceed: 

An  indor8eraent(s)  of  the  said  last  mentioned  bill  of  exchange, 
whose  tenor  follows,  etc.,  that  is  to  say,  "  S.  R.  and  Son,"  with 
intent  to  defraud,  etc.  {as  before). 

(274)  Sixth  county  for  publishing  a  forged  indorsement^  etc. 

{Same  with  that  of  the  fourth  county  substituting  the  indorsement 
and  its  tenor  for  the  accej^iance  and  its  tenor):  against,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(275)  For  forgery  at  common  law.,  in  antedating  a  mortgage  deed 
with  intent  to  take  place  of  a  prior  mortgage.{t) 

That  whereas,  a  certain  M.  IST.,  yeoman,  on,  etc.,  at,  etc.,  was 
seized  in  his  demesne  as  of  fee  of  and  in  two  certain  lots  or 
pieces  of  ground,  one  of  them  situate,  lying,  and  being  in  Prince 
Street,  in  the  borough  of  Lancaster,  in  Lancaster  County  afore- 
said, containing,  etc. ;  the  other  of  which  said  lots,  situate,  etc., 
and  that  the  said  M.  N.,  the  same  day  and  year  aforesaid,  at 
Lancaster  County  aforesaid,  for  a  good  and  valuable  considera- 
tion to  him,  the  said  M.  N.,  by  a  certain  A.  K.,  before  that  time 
paid,  did  make  and  execute,  seal,  and  deliver,  to  the  said  A.  K., 

{s)  See  Stark.  C.  P.  116,  117;  K.  v.  Biggs,  3  P.  Wms.  419. 

(t)  This  indictment,  which  was  drawn  in  1763,  is  signed  by  "Benj.  Chew, 
attorney-general,"  but  a  note  on  a  manuscript  copy  with  which,  among  others, 
I  have  been  furnished  by  Mr.  Dillingham,  of  Philadelphia,  sta,tes  that  it  was 
"settled  by  Edward  Shippen,  deputy  attorney-general,"  and  afterwards  chief 
justice.     Whether  the  case  is  one  of  forgery,  see  Wh.  Cr,  Law,  8th  ed.  §  663. 

290 


FORGERY,   COINING,   UTTERING,   ETC.  (275) 

a  certain  indenture  and  deed  of  mortgage,  dated  the  same  day 
and  year  aforesaid,  wherein  and  whereby  the  said  M.  IN.  did 
grant,  bargain,  sell,  aliene,  release,  and  confirm  unto  the  said  A. 
K.,  his  heirs  and  assigns,  all  those  two  adjacent  lots  or  pieces  of 
ground  before  mentioned  and  described,  situate  on  Prince  Street 
aforesaid,  in  the  borough  and  county  aforesaid,  together  with 
the  houses  and  out-houses,  edifices,  and  buildings  thereon  erected, 
and  all  and  singular  their  appurtenances,  to  have  and  hold  the 
same  to  the  said  A.  K.,  his  heirs  and  assigns  forever,  with  a  pro- 
viso in  the  same  indenture  contained,  that  if  the  same  M.  N., 
his  heirs,  executors,  or  administrators,  should  and  did  well  and 
truly  pay,  or  cause  to  be  paid,  to  the  said  A,  K.,  or  his  execu- 
tors, administrators,  and  assigns,  the  sum  of  pounds,  on  the 
day  of  together  with  lawful  interest  for  the  same,  then 
that  indenture  to  be  void,  and  the  estate  thereby  granted  to 
cease  and  determine  {here  recite  the  proof  or  acknowledgraeyit  of  the 
deed  and  enrolment^  loith  the  day,  place,  and  book),  as  by  the  said 
indenture,  reference  being  thereunto  had,  more  fully  and  at  large 
appears. 

And  that  M.  R.,  of  L.,  in  Lancaster  County,  aforesaid,  yeo- 
man, and  D.  S.,  of  the  borough  of  Lancaster,  in  Lancaster 
County,  attorney  at  law,  well  knowing  the  premises,  and  design- 
ing and  fraudulently  intending  the  said  A.  K.  falsely  and  un- 
lawfully to  deceive  and  defraud,  and  with  an  intent  to  destroy, 
invalidate,  and  render  of  no  effect  the  mortgage  deed  aforesaid, 
and  to  deprive  the  said  A.  K.  of  all  benefit  and  advantage 
therefrom,  and  to  lessen  and  destroy  the  security  which  the  said 
A.  K.  had  by  the  said  mortgage  deed,  for  the  payment  of  the 
said  sum  of  pounds,  with  the  interest  thereof,  afterwards, 

to  wit,  the  fourth  day  of  November,  A.  D.  1763,  at  Lancaster 
County  aforesaid,  and  within  the  jurisdiction  of  this  court, 
with  force  and  arms,  knowingly,  subtly,  and  falsely  did  forge 
and  make,  and  cause  to  be  forged  and  made,  one  false  writing 
sealed,  purporting  to  be  an  indenture  of  mortgage  from  the 
said  M.  N.  to  the  said  M.  R.,  for  the  two  lots  of  ground  afore- 
said, before  granted  and  mortgaged  as  aforesaid,  by  the  said  M. 
N.  to  the  said  A.  K.,  and  purporting  to  bear  date  and  to  have 
been  sealed  and  delivered,  by  the  said  M.  IST.,  on  the  fourth  day 
of  June,  1763,  which  same  false  and  forged  writing  contains 

291 


(275)  OFFENCES    AGAINST    PROPERTY. 

the  matter  following,  to  wit,  this  indenture,  etc.  {setting  forth 
the  same),  as  by  the  said  false  and  forged  indenture  fully  ap- 
pears. 

And  the  inquest  aforesaid  do  further  present,  that  the  said 
M.  R.  and  D.  S.,  the  said  fourth  day  of  ISTovember,  at  Lancaster 
County  aforesaid,  fraudulently  and  deceitfully  designing  to  de- 
fraud and  supplant  the  said  A.  K.,  with  an  intent,  that  the 
said  false  and  forged  writing  should  invalidate,  defeat,  and 
become  prior  to  the  indenture  of  mortgage  aforesaid  of  the  said 
M.  K,  before  that  time  made,  sealed,  and  delivered  to  the  said 
A.  K.  (the  last  mentioned  indenture  of  mortgage  being  then 
and  there  in  full  force,  and  the  moneys  mentioned  in  the  pro- 
viso aforesaid  being  unpaid  to  the  said  A.  K.,  his  attorney,  or 
assigns),  the  same  false  and  forged  writing  did  antedate,  and 
cause  to  be  antedated,  and  to  bear  date  on  a  day  prior  to  the 
sealing  and  delivery  of  the  indenture  aforesaid,  to  the  said  A. 
K.,  to  wit,  on  the  fourth  day  of  June  aforesaid,  and  the  said 
M.  R.  and  D.  S.,  on  the  fourth  day  of  November  aforesaid,  at 
the  county  aforesaid,  falsely,  unlawfully,  and  deceitfully  did 
prevail  upon  and  procure  the  aforesaid  M.  N.  to  execute  and 
acknowledge,  sign,  seal,  and  deliver,  as  his  act  and  deed,  the 
same  false  and  forged  writing,  he  the  said  M.  N.  then  and  there 
not  knowing  the  same  false  writing  to  have  been  as  aforesaid 
antedated,  but.  believing  the  same  to  have  borne  date  on  the 
day  of  the  execution  and  delivery  of  the  same,  to  wit,  on  the 
fourth  day  of  November  aforesaid.  And  the  inquest,  etc.,  do 
further  present,  that  the  said  M.  R.  and  D.  S.,  afterwards,  to 
wit,  the  same  fourth  day  of  November,  at  Lancaster  County 
aforesaid,  with  an  intent  the  said  A.  K.  to  injure,  cheat,  deceive, 
and  defraud,  and  to  cause  the  aforesaid  false  and  forged  writing 
to  invalidate,  defeat,  and  become  prior  to  the  true,  genuine,  and 
lawful  deed  aforesaid,  made  and  sealed  as  aforesaid,  and  deliv- 
ered to  the  said  A.  K.,  the  same  false,  forged,  and  antedated 
deed,  as  the  true  and  genuine  deed  of  the  said  M.  N.,  by  him 
made,  executed,  sealed,  and  delivered,  on  the  fourth  day  of 
June  aforesaid,  falsely,  unlawfully,  knowingly,  fraudulently, 
and  deceitfully  did  publish,  and  cause  to  be  published,  when  in 
truth  the  said  M.  R.  and  D.  S.  then  and  there  well  knew  the 
Baid  last  mentioned  writing  to  be  false,  forged,  and  antedated, 
292 


FORGERY,    COINING,   UTTERING,   ETC.  (276) 

and  not  to  have  been  sealed  and  delivered  by  him  the  said  M. 
IN",  on  the  fourth  day  of  June  aforesaid,  but  on  the  fourth  day 
of  November  aforesaid,  to  the  great  injury  and  deceit  of  the  said 
A.  K.,to  the  evil  example  of  all  others  in  such  case  offending, 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(275a)  Forgery  of  note  under  Indiana  statute. 

The  grand  jurors  for,  etc.,  upon  their  oath  present,  that  D.  S., 
on,  etc.,  at,  etc.,  unlawfully,  feloniously,  and  falsely  did  forge 
and  counterfeit  a  certain  promissory  note  for  the  payment  of 
money,  which  said  forged  and  counterfeit  note  is  as  follows,  to 
wit,  "  $200.00.  Waterloo,  Indiana,  August  28th,  1876.  Thirty 
days  after  date,  we  or  either  of  us  promise  to  pay  to  the  order 
of  the  De  Kalb  Bank,  two  hundred  dollars,  with  interest  at 
ten  per  cent,  per  annum  after  maturity,  the  interest  until  matu- 
rity at  that  rate  having  been  paid  in  advance,  and  ten  per  cent, 
attorney's  fees,  negotiable  and  payable  at  the  De  Kalb  Bank, 
Waterloo,  Indiana,  value  received,  without  any  relief  whatever 
from  valuation  or  appraisement  laws.  The  drawers  and  endors- 
ers severally  waive  presentment  for  payment,  protest,  and  notice 
of  protest  and  non-payment  of  this  note,  and  all  defences  on 
the  ground  of  any  extension  of  the  time  of  its  payment,  that 
may  be  given  by  the  holder  or  holders  to  them  or  either  of 
them. 

Due  .  No.  .  John  Shirrey, 

John  R.  Walker," 
with  intent  to  defraud  J.  I.  B.  and  C.  A.  O.  McC,  who  were 
doing  business  under  the  firm  name  of  De  K.  Bank,  contrary, 
etc.(M) 

(276)  At  common  law.     Against  a  member  of  a  dissolved  firm  for 
forging  the  name  of  the  firm  to  a  promissory  note. 

That  D.  Gr.,  late,  etc.,  on,  etc.,  and  after  the  dissolution  of  the 
copartnership  of  the  said  D.  G.  and  J.  0.,  who  had  shortly 
before  carried  on  trade  and  merchandise,  under  the  name  and 
firm  of  0.  and  G.,  at,  etc.,  did  falsely  make,  forge,  and  counter- 
feit, and  did  cause  and  procure  to  be  falsely  made,  forged,  and 

(m)  This  was  held  good  on  motion  to  quash  in  Sharley  v.  State,  54  Ind.  168. 

293 


(278)  OFFENCES    AGAINST    PROPERTY. 

counterfeited  a  certain  promissory  note,  for  the  payment  of 
money,  signed  by  the  said  D.  G.  with  the  partnership  names  of 
0.  and  G.,  and  purporting  to  have  been  signed  by  the  said  D. 
G.  with  the  partnership  name  of  0.  and  G,  before  the  said  part- 
nership was  dissolved,  the  tenor  of  Avhich  jjromissory  note  is  as 
follows:  "$5000.  Ninety  days  after  date  w^e  promise  to  pay 
"W.  S.,  or  order,  five  thousand  dollars,  at  the  State  Bank  at 
Elizabeth,  without  defalcation  or  discount,  for  merchandise 
rec'd,  E.  T.,  80th  December,  1812,  0.  and  G.,"  with  intent  to 
defraud  the  said  J.  O.,  and  to  render  him  liable  to  the  payment 
of  the  said  sum  of  money  in  the  said  note  mentioned  and  made 
payable,  contrary,  etc.(v)    {Conclude  as  in  book  1,  chapter  3.) 

(277)  Forging  a  letter  of  attorney^  at  common  law. 

That  J.  B.,  late  of  the  said  county,  yeoman,  on,  etc.,  with 
force  and  arms,  at  the  county  aforesaid,  falsely,  fraudulently, 
and  deceitfully  did  make,  forge,  and  counterfeit  a  certain  letter 
of  attorney,  purporting  to  be  signed  by  one  T.  E..,  with  the 
mark  of  him  the  said  T.  R.,  and  to  be  sealed  and  delivered  by 
him  the  said  T.  R.,  the  tenor  of  which  said  letter  of  attorney 
is  as  follows  {here  recite  letter  of  attorney,  verbatim  et  literatim), 
with  an  intent  to  defraud  the  said  T.  R.,  against,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

(278)  Forgery  of  bill  of  exchange.     First  count,  forging  the  bill.{w) 

That  (defendant),  on,  etc.,  at,  etc.,  feloniously,  etc.,  did  forge 
a  certain  bill  of  exchange,  which  said  forged  bill  of  exchange 
is  as  follows,  that  is  to  say:  "  £50.  Bristol,  25th  March,  1830. 
Three  months  after  date  pay  to,"  etc.  etc.  {setting  out  the  bill  of 

[v)  State  V.  Gustine,  2  Southard,  744.  Mr.  Hazley  moved  to  quash:  1.  For 
uncertainty  and  inconsistency.  2.  Because  the  purport  was  incorrectly  stated,  it 
being  stated  to  be  signed  by  defendant,  with  partnei"ship  name  of  Ogden  and 
Gustin,  whereas  it  did  not  purport  to  be  signed  by  D.  Gustine.  2  East,  982.  3. 
Because  partner  before  or  after  dissolution  of  partnership,  may  sign  partnership 
name  for  a  separate  business,  and  not  be  liable  to  the  pains  of  forgery.  Chet- 
wood  answered,  and  referred  to  2  Hawk.  344;  1  Mod.  78;  1  Str.  234,  241, 
266;  1  Salk.  381;  1  Leach,  239,  410;  2  Str.  486;  2  Leach,  6C0.  The  court, 
Southard,  J.,  dissenting,  overruled  the  motion,  and  put  the  defendant  to  plead. 

(i/j)  Arch.  C.  P.  5th  Am.  ed.  444.  This  form  is  drawn  under  the  stat.  11 
Geo.  IV.  and  1  Wm.  IV.  c.  66,  s.  3,  which  makes  it  felony  to  forge  "any  bill 
of  exchange  or  promissory  note  for  the  payment  of  money."  For  a  more  com- 
prehensive form,  see  No.  269,  etc. 

294 


FORGERY,   COINING,    UTTERING,   ETC.  (281) 

exchange  in  words  and  figures  correctly)^  with  intent  to  defraud 
one  J.  1:^.,  against,  etc.     [Conclude  as  in  book  1,  chapter  3.) 

(279)  Second  count.     Uttering  the  same. 

That  the  defendant  "did  offer,  utter,  dispose  of,  and  put  off" 
a  certain  other,  etc.  etc. 

(280)  Third  count.     Forging  an  acceptance  on  the  same. 

{If  the  acceptance  be  also  forged^  add  counts  for  it  in  this  form) : 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  J.  S.,  afterwards,  to  wit,  on  the  year  and 
day  last  aforesaid,  at  the  parish  aforesaid,  in  the  county  afore- 
said, having  in  his  custody  and  possession  a  certain  other  bill 
of  exchange,  which  said  last  mentioned  bill  of  exchange  is  as 
follows,  that  is  to  say  {here  set  out  the  bill).,  he  the  said  J.  S.,  after- 
wards, to  wit,  on  the  day  and  year  last  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  feloniously  did  forge  on  the 
said  last  mentioned  bill  of  exchange  an  acceptance  ("any  indorse- 
ment on,  or  assignment  of,  any  bill  of  exchange,  or  promissory 
note  for  the  payment  of  money,  or  any  acceptance  of  a  bill  of 
exchange")  of  the  said  last  mentioned  bill  of  exchange,  which 
said  forged  acceptance  is  as  follows,  that  is  to  say,  "  Accepted, 
payable  at  the  bank  of  Messrs.  C.  &  Co.,  J.  G."  {or  as  the  accep- 
tance may  be),  with  intent  to  defraud  the  said  J.  N.,  against,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(281)  Fourth  count.     Offering.,  etc.,  a  forged  acceptance. 

{Same  as  the  last.,  to  the  end  of  the  copy  of  the  bill  of  exchange,  then 
as  follows):  and  on  which  said  last  mentioned  bill  of  exchange 
was  then  and  there  written  a  certain  forged  acceptance  of  the 
said  last  mentioned  bill  of  exchange,  which  said  forged  accep- 
tance of  the  said  last  mentioned  bill  of  exchange  is  as  follows, 
that  is  to  say  {here  set  out  the  acceptance  as  in  the  last  count),  he, 
the  said  J.  S.,  well  knowing  the  premises  last  aforesaid,  after- 
wards, to  wit,  on  the  day  and  year  last  aforesaid,  at  the  parish 
aforesaid,  in  the  county  aforesaid,  feloniously  did  offer,  utter, 
dispose  of,  and  put  off  the  said  forged  acceptance  of  the  said 
last  mentioned  bill  of  exchange,  with  intent  to  defraud  the  said 
J.  IST.  (he  the  said  J.  S.  at  the  time  he  so  offered,  uttered,  dis- 

295 


(282)  OFFENCES    AGAINST    PROPERTY. 

posed  of,  and  put  off  the  said  forged  acceptance  of  the  said  last 
mentioned  bill  of  exchange,  then  and  there  well  knowing  the 
said  acceptance  to  be  forged),  against,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

{If  an  indorsement  be  also  forged,  add  counts  for  it  in  this  form.) 

Fifth  count. 

And  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  further 
present,  that  the  said  J.  S.,  afterwards,  to  wit,  on  the  day  and 
year  last  aforesaid,  at  the  parish  aforesaid,  in  the  county  afore- 
said, having  in  his  custody  and  possession  a  certain  other  bill 
of  exchange,  which  said  last  mentioned  bill  of  exchange  is  as 
follows,  that  is  to  say  {here  set  out  the  bill),  he  the  said  J.  S., 
afterwards,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  feloniously  did  forge 
on  the  back  of  the  said  last  mentioned  bill  of  exchange  a  cer- 
tain indorsement  of  the  said  bill  of  exchange,  which  said  forged 
indorsement  is  as  follows,  that  is  to  say,  "J.  S.  &  Co.,"  with  in- 
tent to  defraud  the  said  J.  l!^.,  against,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(282)  Sixth  count.     Offering,  etc.,  forged  indorsement. 

{Same  as  the  last,  to  the  end  of  the  copy  of  the  bill  of  exchange, 
then  as  follows:)  and  on  the  back  of  which  said  last  mentioned 
bill  of  exchange  was  then  and  there  written  a  certain  forged 
indorsement  of  the  said  last  mentioned  bill  of  exchange,  which 
said  last  mentioned  forged  indorsement  is  as  follows,  that  is  to 
say,  "  J.  S.  &  Co.,"  he  the  said  J.  S.,  well  knowing  the  premises 
last  aforesaid,  afterwards,  to  wit,  on  the  day  and  year  last  afore- 
said, at  the  parish  aforesaid,  in  the  county  aforesaid,  feloniously 
did  ofter,  utter,  dispose  of,  and  put  oft"  the  said  last  mentioned 
indorsement  of  the  said  last  mentioned  bill  of  exchange,  with 
intent  to  defraud  the  said  J.  15^.  (he  the  said  J.  S.,  at  the  time 
he  so  oftered,  uttered,  disposed  of,  and  put  off"  the  said  last  men- 
tioned forged  indorsement  of  the  said  last  mentioned  bill  of  ex- 
change, then  and  there  well  knowing  the  said  indorsement  to 
be  forged),  against,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

296 


PORGERY,   COINING,    UTTERING,   ETC.  (285) 

(283)  For  forging  and  imhlishing  a  receipt  for  judgment  of  money. [x) 

That  J.  B.,  etc.,  on,  etc.,  at,  etc.  {averring  forgery  as  in  i^reced- 
ing  forms)^  a  certain  acquittance  and  receipt  {y)  for  money,  to 
wit,  for  the  sum  of  three  pounds  and  three  shillings,  in  the 
words,  letters,  and  figures  following,  that  is  to  say,  "  August 
the  26th,  1781.  Received  of  Mr.  J.  B.  for  Moustone  quarry,  the 
full  sum  of  three  pounds  and  three  shillings.  Received  by  me, 
T.  F.,"  with  intent  to  defraud  the  said  T.  F.,  etc.,  against,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(i;84)  Second  count,  for' idtering. 

That  the  said  J.  B.,  etc.,  on,  etc.,  at,  etc.,  a  certain  false, 
forged,  and  counterfeited  acquittance  and  receipt  for  money,  to 
wit,  for  the  sum  of  three  pounds  and  three  shillings,  feloniously 
did  utter  and  publish  as  true ;  which  said  last  mentioned  false, 
forged,  and  counterfeited  acquittance  and  receipt  is  in  the  words, 
letters,  and  figures  following,  that  is  to  say  {set  out  the  receipt  as 
before),  with  intent  to  defraud  the  said  T.  F.,  he  the  said  J.  B., 
at  the  time  when  he  so  uttered  and  published  the  said  last  men- 
tioned false,  forged,  and  counterfeited  acquittance  and  receipt, 
well  knowing  the  same  acquittance  and  receipt,  so  by  him  uttered 
and  published,  to  be  false,  forged,  and  counterfeited,  against, 
etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(285)  Forging  a  receipt,  under  the  North  Carolina  statide.{z) 

That  J.  S.,  late  of  the  county  of  Johnston,  in  the  state  of 
IS'orth  Carolina,  on,  etc.,  with  force  and  arms,  in  the  county  of 

(.r)   Stark.  C.  P.  457. 

[y)  Unless  the  instrument  on  the  face  of  it  appear  to  be  a  receipt,  it  must  be 
shown  by  the  aid  of  proper  averments  that  it  could  so  operate.  Stark.  C.  P.  116, 
117;  supra,  notes  to  form  264;  infra,  notes  to  form  415.  See  also  "\Yh.  Cr. 
PI.  &  Pr.  §  185. 

(2)  State  V.  Stanton,  1  Iredell,  424.  "Upon  the  form  of  the  indictment,  the 
court  would  perhaps  not  be  bound  now  to  decide,  since  the  other  point  disposes 
of  the  case  here.  But  as  the  point  may  be  material  upon  the  next  trial,  and 
would,  probably,  soon  arise  in  other  cases,  we  deem  it  fit  to  state  the  oj)inion  we 
have  formed  of  it,  with  the  view  of  settling  the  question.  It  would  have  been 
more  satisfactory  to  us  if  in  the  books  of  criminal  pleading  or  in  an  adjudication 
a  precedent  or  a  direct  authority  could  have  been  found.  We  have,  however, 
looked  through  the  standard  works  on  crown  law,  from  Lord  Coke's  commentary 
on  the  statute  5  Elizabeth,  c.  14,  in  the  third  institute,  down  to  Mr.  Chitty's 
treatise,  and  through  many  books  of  forms,  without  succeeding  in  finding  an  in- 

297 


(285) 


OFFENCES    AGAINST    PROPERTY. 


Johnston  aforesaid,  feloniously  did  wittingly  and.  falsely  forge, 
make,  and  counterfeit,  and  did  cause  and  procure  to  be  falsely 

dictment  upon  these  words  in  that  statute,  '  show  forth  in  evidence, '  or  a  rule 
laid  down  upon  them.  This  circumstance  may  not  perhaps  be  deemed  so  very 
singular,  wlien  it  is  remembered  that  the  same  act  contains  also  the  words  '  pro- 
nounce and  publish,'  which  are  more  extensive,  and  include  '  shoAV  forth  in  evi- 
dence.' This  furnishes  a  reason  why  the  indictment  should  always  be  for  'pro- 
nouncing and  publishing,'  and  none  for  'showing  forth  in  evidence;'  since, 
although  every  publication  is  not  showing  forth  in  evidence,  yet  showing  forth 
in  evidence  is  a  publishing  of  it.  Lord  Coke  saying  that  using  any  words,  written 
or  oral,  whereby  the  instrument  is  set  forth  or  held  up  as  true,  is  '  to  pronounce 
and  publish  it.'  We  have  therefore  only  principle  for  our  guide,  and,  being  so 
guided,  we  have  arrived  at  the  conclusion  that  the  second  count  is  sufficient. 

"In  the  first  place,  we  adhere  to  Britt's  case,  3  Dev.  122,  that  the  words 
'show  forth  in  evidence,'  refer  to  a  judicial  proceeding.  The  question  then  is, 
•whether  tiie  particular  proceeding  must  be  set  forth  at  large  in  the  indictment, 
or  may  not  be  shown  on  evidence  under  the  general  words  used  in  the  statute  and 
in  this  indictment. 

"It  seems  to  be  proper,  and  perhaps  may  be  said  to  be  necessary,  when  an 
offence  is  created  by  statute,  to  describe  it  in  the  indictment,  whether  consisting 
of  the  commission  or  omission  of  particular  acts,  or  of  certain  acts  accompanied 
by  a  particular  intent  in  the  words  of  the  statute.  This  is  certainly  so,  unless 
for  a  word  or  phrase  in  the  statute  another  is  used  in  the  indictment  which  is 
clearly  of  the  same  legal  import,  or  has  a  broader  sense  including  that  in  the 
statute.  Of  this  exception,  R.  v.  Fuller  (1  B.  &  P.  180)  is  an  example.  But 
such  examples  are  very  rare ;  and  on  the  contrary,  the  case  of  Rex.  v.  Davis 
(Leach,  403),  and  others  of  that  kind,  show  how  strictly  the  courts  adhere  to  the 
letter  of  the  law.  Finding  it  thus  to  be  generally  true,  that  in  describing  the 
offence,  the  indictment  must  use  all  the  words  of  the  statute ;  so  on  the  other 
hand,  it  would  seem  to  be  equally  true  as  a  general  rule,  that  the  indictment  is 
sufficient  if  it  contain  all  the  words  of  the  statute.  AVhen  the  language  of  the 
statute  is  transferred  to  the  indictment,  the  expressions  must  be  taken  to  mean 
the  same  thing  in  each.  There  can  be  few  instances  in  which  the  same  words 
thus  used,  ought  to  or  can  be  received  in  a  different  sense  in  the  one  instrument 
from  that  in  the  other.  As  it  is  certain  that  the  indictment  was  intended  to 
describe  the  offence  which  the  statute  describes,  it  follows,  from  the  use  of  the 
very  same  language  in  both,  that  the  one  means  what  the  other  does,  neither  more 
nor  less.  It  is  true  that  some  few  exceptions  from  this  rule  have  been  established 
by  adjudications,  but  they  have  not  appeared  to  us  to  embrace  the  present  case. 
Thus,  a  statute  may  be  so  Inaccurately  penned,  that  its  language  does  not  express 
the  whole  meaning  the  legislature  had  ;  and  by  construction,  its  sense  is  extended 
beyond  its  words.  In  such  a  case,  the  Indictment  must  contain  such  averments 
of  other  facts  not  expressly  mentioned  in  the  statute,  as  will  bring  the  case  within 
the  true  meaning  of  the  statute;  that  is,  the  Indictment  must  contain  such  words 
as  ought  to  have  been  used  in  the  statute,  if  the  legislature  had  correctly  expressed 
therein  their  precise  meaning.  In  State  v.  Johnson,  1  Dev.  360,  for  example, 
it  was  held,  that  besides  charging  in  the  words  of  the  act,  that  the  prisoner,  being 
on  board  the  vessel,  concealed  the  slave  therein,  the  indictment  should  have 
charged  a  connection  between  the  prisoner  and  the  vessel,  as  that  he  was  a  mari- 
ner belonging  to  her ;  because  that  was  the  true  construction  of  the  act.  So, 
where  a  statute  uses  a  generic  term,  it  may  be  necessary  to  state  in  the  indictment 
the  particular  species  in  respect  to  which  the  crime  Is  charged.  As,  upon  a  stat- 
ute for  killing  or  stealing  '  cattle,'  an  indictment  using  only  that  word  is  not  suffi- 
cient, but  it  ought  to  set  forth  the  kind  of  cattle,  as  a  horse  or  a  cow.  R.  v. 
Chalkeley,  R.  &  R.  258.     But  where  a  statute  makes  a  particular  act  an  offence, 

298 


FORGERY,   COINING,   UTTERING,   ETC.  (285) 

made,  forged,  and  counterfeited,  and  did  willingly  act  and  assist 
in  the  false  making,  forging,  and  counterfeiting  a  certain  receipt, 
which  said  false,  forged,  and  counterfeited  receipt  is  as  follows, 
that  is  to  say,  "  received  of  J.  S.  thirty-five  dollars  and  ninety- 
one  cents,  this  22d  day  of  May,  1838,  in  part  of  the  rent  of  land 
that  I  rented  to  him  for  the  year  1837.  W.  W." 

with  intention  to  defraud  one  W.  W.,  against,  etc.,  and  against, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
say  and  present,  that  the  said  J.  S.,  afterwards,  to  wit,  on,  etc., 
in  the  county  of  Johnston  aforesaid,  feloniously  did  utter  and 
publish  as  true,  and  show  forth  in  evidence  a  certain  other  false, 
forged,  and  counterfeit  receipt,  which  said  last  mentioned  false, 
forged,  and  counterfeited  receipt  is  as  follows,  that  is  to  say, 
"  Eeceived  of  J.  S.  thirty-five  dollars  and  ninety-one  cents,  this 
22d  day  of  May,  1838,  in  part  of  the  rent  of  the  land  that  I 
rented  to  him  for  the  year  1837.  W.  W." 

with  intention  to  defraud  the  said  W.  W.,  he,  the  said  J.  S.,  at 
the  time  he  so  uttered  and  published,  and  showed  forth  in  evi- 
dence the  said  last  mentioned  false,  forged,  and  counterfeited 
receipt  as  aforesaid,  then  and  there  well  knowing  the  same  to  be 
false,  forged,  and  counterfeited,  against,  etc.,  and  against,  etc. 
[Conclude  as  in  book  1,  chapter  3.) 

and  sufficiently  describes  it  by  terms  having  a  definite  and  specific  meaning,  -with- 
out specifying  the  means  of  doing  the  act,  it  is  enough  to  charge  the  act  itself, 
■without  its  attendant  circumstances.  Thus,  upon  a  statute  making  it  felony  to 
endeavor  to  seduce  a  soldier  from  his  duty,  an  indictment  is  good  which  charges 
such  'an  endeavor,'  without  stating  the  mode  adopted.  Fuller's  case,  before 
cited.  So,  in  the  indictments  founded  on  the  words  'pronounce  and  publish,' 
in  this  same  statute  of  Elizabeth  (which  are  not  ours),  the  precedents  uniformly 
charge  'tlie  pronouncing  and  publishing  of  the  forged  instrument  as  true,'  with- 
out stating  the  means  by  which,  or  the  person  to  whom  it  was  published.  Upon 
the  more  modern  English  statutes  against  'putting  off"  or  disposing  of  forged  or 
counterfeit  money  or  bank  notes,  it  is  also  held,  that  the  circumstances  need  not 
be  stated.  Rex.  v.  Holden  et  al.,  2  Taunt.  334.  We  do  not  perceive  why  the 
same  principle  does  not  apply  to  the  other  words  'show  forth  in  evidence,'  used 
in  the  act  of  Elizabeth,  and  in  our  act ;  and  we  are  not  aware  of  any  disadvan- 
tage to  the  prisoner  from  the  omission  to  set  out  in  the  indictment  tlie  particular 
proceeding  in  which  the  evidence  was  offered.  We  agree  that  such  a  judicial 
proceeding  must  be  proved  ;  and  if  it  be  not  properly  proved,  the  prisoner  can 
put  the  matter  on  the  record  by  an  exception,  and  have  the  same  benefit  thereof 
on  a  motion  to  reverse  the  judgment,  and  for  a  venire  de  novo,  that  he  could  have 
from  a  motion  in  arrest  of  judgment.  Hence  we  hold  the  second  count  in  this 
indictment  to  be  good." 

299 


(287)  OFFENCES   AGAINST   PROPERTY. 

(286)  Forging  a  fieri  facias  at  common  law. {a) 

That  J.  S.,  late,  etc.,  on,  etc.,  unlawfully  and  wickedly  con- 
triving to  injure,  oppress,  impoverish,  and  defraud  one  J.  jST., 
then  and  there  unlawfully,  knowingly,  and  falsely  did  forge 
and  counterfeit  a  certain  writing  on  parchment,  purporting  to 
be  a  writ,  of  our  lady  the  queen,  of  fieri  facias.,  and  to  have 
issued  out  of  the  court  of  our  said  lady  the  queen  of  the  bench 
at  Westminster,  in  the  county  aforesaid;  which  said  false, 
forged,  and  counterfeited  writing  is  as  follows,  that  is  to  say 
{here  set  out  the  fieri  facias  verbatim).,  with  intent  the  said  J.  N,  to 
injure,  oppress,  impoverish,  and  defraud,  to  the  great  damage 
of  the  said  J.  N. ,  to  the  evil  example  of  all  others  in  the  like 
case  offending,  and  against,  etc.  {concluding  as  in  book  1,  chapter 
3).  ("  This  count"  remarks  Mr.  Archbold.,  "  appears  to  be  sufficient., 
without  stating  that  the  ivrit  was  actucdly  executed.,  or  the  prosecutor^ s 
goods  seized  under  it.^'  However,  it  mag  be  as  well  to  add  a  second 
•  count.,  sirnilar  to  the  above,  to  the  end  of  the  statement  of  the  fieri  facias, 
and  then  continue:)  with  intent  the  said  J.  JS".  to  injure,  oppress, 
impoverish,  and  defraud.  And  the  said  J.  S.,  afterwards,  and 
before  the  said  last  mentioned  pretended  writ  purported  to  be 
returnable,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the 
parish  aforesaid,  in  the  county  aforesaid,  the  said  last  mentioned 
false,  forged,  and  counterfeited  writing,  knowingly,  falsely,  and 
deceitfully,  as  a  true  writ  of  our  said  lady  the  queen,  oi  fieri 
facias, (ha  cause  to  be  delivered  to  the  then  sheriff  of  "Middlesex, 
for  execution  to  be  made  thereof;  and  afterwards,  and  before 
the  last  mentioned  pretended  writ  purported  to  be  returnable, 
to  wit,  on  the  day  and  year  aforesaid,  in  the  parish  aforesaid, 
in  the  county  aforesaid,  did  cause  to  be  seized  and  taken  divers 
goods  and  chattels  of  the  said  J.  l!^.  to  a  large  amount,  by  pre- 
tence of  the  said  pretended  writ,  to  the  great  damage  of  the 
said  J.  N.,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(287)  Second  count.     Uttering  same. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  the  said  J.  S.,  afterwards,  to  wit,  on  the  day 

(a)  Archbold's  C.  P.  5th  Am.  ed.  392. 

300 


FORGERY,   COINING,   UTTERING,    ETC.  (288) 

and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county  afore- 
said, unlawfully,  falsely,  and  deceitfully  did  utter  and  publish 
as  a  true  writ  of  our  lady  the  queen,  oi  fieri  facias^  a  certain 
other  false,  forged,  and  counterfeited  writing  on  parchment, 
purporting  to  be  a  writ  of  our  said  lady  the  queen,  oi  fieri  facias, 
and  to  have  issued  out  of  the  court  of  our  said  lady  the  queen 
of  the  bench  at  Westminster,  in  the  county  aforesaid;  which 
said  false,  forged,  and  counterfeited  writing  is  as  follows,  that 
is  to  say  {here  set  out  the  writ  verbatim),  with  intent  the  said  J. 
^N".  to  injure,  oppress,  impoverish,  and  defraud  (he  the  said  J.  S., 
at  the  time  he  so  uttered  and  published  the  said  last  mentioned 
false,  forged,  and  counterfeited  writing  as  aforesaid,  then  and 
there  well  knowing  the  same  to  be  false,  forged,  and  counter- 
feited). And  the  said  J.  S.,  afterwards,  and  before  the  said  last 
mentioned  pretended  writ  purported  to  be  returnable,  to  wit, 
on  the  day  and  year  last  aforesaid,  at  the  parish  aforesaid,  in 
the  county  aforesaid,  the  last  mentioned  false,  forged,  and 
counterfeited  writing,  knowingly,  falsely,  and  deceitfully,  as  a 
true  writ  of  our  lady  the  queen,  oi  fieri  facias,  did  cause  to  be 
delivered  to  the  then  sheriff  of  Middlesex,  for  execution  to  be 
made  thereof ;  and  afterwards,  and  before  the  said  last  mentioned 
pretended  writ  purported  to  be  returnable,  to  wit,  on  the  day 
and  year  last  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  did  cause  to  be  seized  and  taken  divers  goods  and 
chattels  of  the  said  J.  N".  to  a  large  amount,  by  pretence  of  the 
said  pretended  writ,  to  the  great  damage  of  the  said  J.  N.,  to 
the  evil  example  of  all  others  in  the  like  case  offending,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

{Add  counts  describing  the  instrument,  etc.,  in  such  manner  as 
would  sustain  an  indictment  for  stealing  the  same.) 

(288)  Forgery  of  a  bond  at  common  law.ib) 

That  D.  M.  G.,  etc.,  late  of,  etc.,  on,  etc.,  with  force  and  arms, 
in,  etc.,  of  his  own  head  and  imagination,  did  wittingly  and 

(6)  State  V.  Gardiner,  1  Ired.  27.  Ruffin,  C.  J.  :  "As  the  rrroiinds  of  the 
motion  in  arrest  of  judgment  are  not  stated  in  the  record,  and  the  court  has  not 
had  the  assistance  of  counsel  for  the  prisoner,  it  is  possible  we  may  have  over- 
looked some  point  on  which  the  motion  ought  to  have  been  allowed.  If  so,  it 
will  be  a  source  of  sincere  regret,  for  in  the  absence  of  counsel  of  his  own  selec- 
tion, the  court  has  endeavored  to  discharge  for  the  prisoner  that  office  which,  as 

301 


(288)  OFFENCES  AGAINST  PROPERTY. 

falsely  make,  forge,  and  counterfeit,  and  did  wittingly  assent  to 
the  falsely  making,  forging,  and  counterfeiting  a  certain  bond 
and  writing  obligatory  in  the  words,  letters,  and  figures,  that 
is  to  say : — 

"  Four  months  after  date,  with  interest  from  the  date,  we  or 
either  of  us  do  promise  to  pay  E.  M.,  or  order,  the  sum  of  twenty- 
four  dollars  and  thirty-eight  and  three-quarter  cents,  for  value 
received  of  him,  as  witness  our  hands  and  seals  this  19th  day 
of  June,  1839. 

"  D.  M'G.,  [Seal.] 
A.  G.,      [Seal.] 
J.  v.,       [Seal.]" 
with  intent  to  defraud  the  said  E.  M.,  against,  etc.,  and  against, 
etc.     {Conclude  as  in  hook  1,  chapter  3.) 

a  public  duty,  is  devolved  on  us.  After  a  careful  examination  of  the  record,  we 
are  unable  so  to  discover  any  reason  why  the  sentence  of  the  law  should  not  fol- 
low the  conviction. 

"In  considering  the  case,  however,  one  or  two  points  have  suggested  them- 
selves, on  which  it  may  be  supposed  an  objection  might  have  been  taken,  and  on 
which,  therefore,  the  court  may  proj^erly  give  an  opinion. 

"As  the  name  of  the  prisoner  and  that  of  one  of  the  supposed  obligors  in  the 
forged  instrument  appear  to  be  the  same,  it  may  have  been  intended  to  present 
the  question,  whether  the  indictment  can  allege  the  forgery  of  the  whole  instru- 
ment by  one  of  the  parties  to  it.  To  that,  we  think,  there  would  be  several 
answers.  One,  that  the  objection  ought  to  have  been  taken  on  the  evidence, 
and  cannot  be  taken  in  this  manner,  since  it  does  not  legally  follow  that  the 
prisoner  is  the  same  person  with  the  supposed  obligor,  although  the  names  be 
the  same.  But  admitting  the  identity  of  those  persons,  yet  secondly,  that  it 
will  not  vitiate  the  indictment.  Tlie  forgery  may  have  consisted  of  alterations 
of  a  true  instrument,  as  by  making  the  sum  mentioned  in  the  bond  more  or  less 
than  it  was  at  first,  or  by  adding  the  names  of  the  other  two  obligors  without 
their  knowledge  or  consent,  and  that  of  the  obligee.  Now,  it  is  a  settled  rule, 
that  in  such  cases  the  forgery  may  be  charged  specially,  by  alleging  the  altera- 
tions ;  or  the  forgery  of  the  entire  instrument  may  be  charged ;  and  this  last 
will  be  supposed  by  evidence  of  the  alterations.  R.  v.  Ellsworth,  2  East,  P.  C. 
986,988.  After  the  alterations,  the  instrument  as  a  whole,  is  a  different  instru- 
ment from  what  it  was ;  and  therefore,  in  its  altered  state,  is  a  forgery  for  the 
whole.  Possibly,  the  prisoner's  counsel  meant  to  object  to  the  indictment,  as 
a  repugnancy,  that  it  charges  the  forgery  of  a  certain  bond ;  whereas  if  it  be 
a  forgery,  it  is  not  a  bond,  but  only  purports  to  be  such.  But  that  objection, 
too,  would  be  untenable.  The  statute  uses  the  same  language  :  '  forge  any  deed, 
will,  bond,  etc.  ;'  and  while  it  is  prudent,  so  it  is  generally  safe,  to  follow  in  the 
indictment  the  words  of  the  statute.  Besides,  upon  looking  to  the  precedents, 
in  books  of  criminal  pleading,  it  is  found,  that  in  this  respect  the  present  indict- 
ment conforms  to  those  long  settled. 

"Without  further  lights  as  to  the  points  intended  to  be  relied  on  for  the 
prisoner,  the  court  is  therefore  under  the  necessity  of  saying,  that  there  is  no 
error  in  the  judgment,  and  directing  the  steps  necessary  to  its  execution." 

302 


FORGERY,   COINING,   UTTERING,   ETC.  (290) 

(289)  At  commoyi  laiu,  by  separating  from  the  back  of  a  note  an 
indorsement  of  -part  iKiyment.{c) 

That  J.  M'L.,  of,  etc.,  on,  etc.,  with  force  and  arms,  at,  etc., 
did  wittingly,  falsely,  and  deceitfully  forge  and  alter,  and  did 
procure  to  be  forged  and  altered  a  certain  promissory  note,  of 
the  tenor  following,  that  is  to  say : — 

"  Barnet,  August  21st,  1821. 
"•  For  value  received,  we  jointly  and  severally  promise  to  pay 
J.  M'L.,  or  his  order,  sixty  dollars,  to  be  paid  in  beef  cattle,  the 
1st  Oct.  1822,  or  grain,  the  1st  Jan.  1823,  with  interest. 

"E.  C. 
R.  M. 
"Attest,  H.  A.  R." 

On  the  back  of  which  promissory  note,  was  then  and  there 
indorsed  twenty  dollars,  in  part  payment  thereof.  And  the  said 
J.  M'L.,  said  indorsement  then  and  there  being  on  the  back  of 
said  note,  and  the  balance  of  said  note  being  then  and  there 
due,  and  no  more,  with  force  and  arms,  wittingly,  falsely,  and 
deceitfully  did  alter  said  note,  by  then  and  there  wittingly, 
falsely,  and  deceitfully  separating  said  indorsement  from  said 
note,  with  intent  to  defraud  and  deceive  the  said  E.  C.  and  R. 
M.,  to  the  great  damage  of  the  said  C.  and  M.,  to  the  evil  ex- 
ample of  others  in  like  cases  offending,  contrary,  etc.,  and  against, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

(290)  Forgery  in  altering  a  peddler^s  license,  at  common  law.{d) 

That  Gr.  K.,  late,  etc.,  on,  etc.,  having  been  recommended  by 
the  court  of  general  quarter  sessions  of  the  peace  and  gaol 
delivery  in  and  for  the  county  of  as  a  proper  person  for 

the  employment  of  a  hawker  or  peddler,  within  this  state,  did 
obtain,  receive,  and  have  a  license  for  that  purpose,  from  the 
supreme  executive  council  of  this  commonwealth,  under  the 
hand  of  the  honorable  C.  B.,  esquire,  then  and  still  being  vice- 
president  of  the  same  council,  and  under  the  seal  of  the  state, 

(c)  See  State  v.  M'Lenan,  1  Aik.  312;  where  this  form  was  held  good  at 
common  law. 

{d)  Drawn  in  1787  by  Mr.  Bradford,  then  attorney-general  of  Pennsylvania. 
See  as  to  forms  for  altering,  infra.,  317,  etc. 

303 


(291)  OFFENCES  AGAINST  PROPERTY. 

which  license  was  in  the  words  following,  to  wit,  "By  the  su- 
preme executive  council,  etc. :  whereas,  G.  K.,  the  bearer  hereof, 
intending  to  follow  the  business  of  a  peddler,  within  this  com- 
monwealth of  Pennsylvania,  hath  been  recommended  to  us  as  a 
proper  person  for  that  employment,  and  requesting  a  license  for 
the  same,  we  do  hereby  license  and  allow  the  said  G.  K.  to  em- 
ploy himself  as  a  peddler  and  hawker  within  the  said  common- 
wealth, to  travel  with  one  horse,  and  to  expose  and  sell  divers 
goods,  wares,  and  merchandises,  until,  etc.,  one  thousand  seven 
hundred  and  eightj^-six,  provided  he  shall  during  the  said  term 
observe  and  keep  all  laws  and  ordinances  of  the  said  common- 
wealth to  the  said  employment  relating.  Given  under  the  seal, 
etc.  C.  B.,  V.  P." 

And  that  he  the  said  G.  K.,so  being  in  possession  of  the  said 
license,  afterwards,  to  wit,  on,  etc.,  at,  etc.,  with  force  and  arms, 
etc.,  the  said  license  falsely,  fraudulently,  and  deceitfully  did 
alter,  and  cause  to  be  altered,  by  falsely  and  deceitfully  erasing 
the  word  six  in  the  said  license,  and  in  the  place  thereof  falsely 
and  deceitfully  did  make,  forge,  and  add  the  word  seven,  where- 
by the  said  license  so  altered  as  aforesaid,  purporting  to  be 
given,  etc.,  was  made  to  extend,  etc.,  with  intent  to  defraud  the 
said  commonwealth  and  to  deceive  the  citizens  thereof,  to  the 
evil  example  of  all  others,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(291)  Forgery  of  a  note  ivhich  cannot  be  particularly  described  in 
consequence  of  its  being  destroy ed.{e) 

That,  etc.,  at,  etc.,  on,  etc.,  devising  and  intending  to  cheat 
and  defraud  one  D.  C.  of  his  goods  and  moneys,  did  falsely  and 
fraudulently  forge  and  counterfeit  a  certain  negotiable  promis- 
sory note,  for  the  payment  of  money,  purporting  to  be  made  by 
the  said  D.  C,  payable  to  one  A.  S.  B.,  which  said  false,  forged, 
and  counterfeited  negotiable  promissory  note  is  to  the  purport 
following,  that  is  to  say  : — 

"  Ninety  days  after  date,  I  promise  to  pay  to  A.  G.  B.,  or 

(e)  See  People  v.  Badgeley,  16  Wend.  53  ;  where  the  fact  of  the  destruction 
of  the  note,  as  here  set  forth,  was  held  to  supersede  the  necessity  of  pleading  it 
according  to  its  precise  form.  For  other  cases  of  forgery  of  lost  documents  see 
sup7-a,  notes  to  form  264. 

304 


FORGERY,   COINING,   UTTERING,   ETC.  (293) 

order,  fourteen  hundred  and  twenty-eight  dollars,  value  re- 
ceived. May,  1833.  D.  C.  (indorsed),  A.  S.  B. :"  a  more  par- 
ticular description  of  which  is  now  here  to  the  jurors  unknown, 
said  note  being  destroyed:  with  intent  to  cheat  and  defraud 
the  said  C.  D.,  etc. 

(292)  Forgery  of  a  note  whose  tenor  cannot  be  set  out  on  account  of 

its  being  in  defendants  possession. 

That  A.  B.,  etc.,  at,  etc.,  falsely  and  fraudulently  did  forge 
and  counterfeit  a  certain  promissory  note,  for  the  payment  of 
money,  purporting  to  be  made  by  one  A.  B.,  payable  on  demand, 
to  one  C.  D.,  the  tenor  of  which  note  is  to  this  inquest  un- 
known, by  reason  that  the  said  A.  B.,  having  the  said  note  in 
his  possession  and  custody,  hath  altogether  refused  and  still 
doth  refuse  to  produce  the  same,  and  to  permit  the  same  to  be 
inspected  by  this  inquest,  although  thereto  often  requested,  to 
wit,  by  the  (attorney-general  of  the  commonwealth),  at  and 
before  the  sitting  of  this  inquisition,  but  which  said  note  was 
in  substance  as  follows  (Aere  set  forth  the  substaiice  of  the  note  and 
conclude  as  in  last  'precedent). 

(293)  Forgery  of  bond  luhen  forged  instrument  is  in  defendants 

possession.{f) 

That  J.  K.,  etc.,  on,  etc.,  at,  etc.,  did  falsely  and  feloniously 
make,  forge,  and  counterfeit,  and  did  then  and  there  willingly 
and  feloniously  aid  and  assist  in  the  false  making,  forging,  and 
counterfeiting,  of  a  certain  false,  forged,  and  counterfeited  bond 
and  writing  obligatory  for  the  payment  of  money,  bearing  date 
on  some  day  and  year  to  the  jurors  aforesaid  unknown,  in  a 
penal  sum  to  the  jurors  aforesaid  unknown,  with  a  condition 
thereunder  written  for  the  payment  of  a  certain  sum  to  the 
jurors  aforesaid  unknown,  with  interest  thereon,  to  the  said  J. 
K.  (the  defendant),  purporting  to  have  been  executed  by  one  G. 
B.,  late  of,  etc.,  which  said  false,  forged,  and  counterfeited 
bond  and  writing  obligatory  for  the  payment  of  monc}',  is  in 

(/)  People  I'.  Kinsley,  2  Cow.  522.  The  second  count  in  this  indictment 
charged  the  defendant  with  destroying  the  alleged  forged  bond  on  some  day  to 
the  jurors  unknown,  and  the  third  count  was  for  uttering  the  same.  Judgment 
was  entered  upon  the  verdict  of  the  jury,  the  court  adopting  the  principles  of 
Com.  V.  Houghton,  8  Mass.  373. 

VOL.  I.— 20  305 


(294)  OFFENCES    AGAINST    PROPERTY. 

the  possession  and  custody  of  the  said  J.  K.  (the  defendant), 
with  intent  to  defraud  one  J.  C,  against,  etc.  {Conclude  as  in 
hook  1,  chapter  3.) 

(294)  Forgery  in  Pennsylvania  at  common  law,  in  passing 
counterfeit  bank  notes.{g) 

That  the  said  J.  S.,  on  the  same  day  and  year  aforesaid,  at 
the  county  aforesaid,  with  force  and  arms,  having  in  his  cus- 
tody and  possession  a  certain  other  false,  forged,  and  counter- 
feited paper  writing,  partly  written  and  partly  printed,  purport- 
ing to  be  a  true  and  genuine  promissory  note  for  the  payment 
of  money,  called  a  bank  note  of  the  Bank  of  North  America,(A) 
and  purporting  to  be  signed  by  J.  N.,  president,  and  also  by 
the  cashier  of  the  said  bank,  the  tenor  of  which  said  last  men- 
tioned, false,  forged,  and  counterfeited  paper  writing,  partly 
written  and  partly  printed,  purporting  to  be  a  true  and  genuine 
promissory  note  for  the  payment  of  money,  called  a  bank  note 
of  the  Bank  of  North  America,  is  as  follows,  that  is  to  say: — 
"X.         I  promise  to  pay  to  D.  C,  or  bearer,  on  demand,     10" 
ten  dollars.    Philadelphia,  26th  of  February,  1808,  n. 
2467,  e.  614.       For  the  president,  directors,  and  com- 
pany of  the  Bank  of  North  America. 
"10  H.  D.,  Jr.,  Cash.  J.  N.,  Pres't.  X" 

falsely,  illegally,  knowingly,  fraudulently,  and  deceitfully  did 
utter  and  publish,  as  a  true  and  genuine  promissory  note  for 
the  payment  of  money,  called  a  bank  note  of  the  Bank  of 
North  America,  the  said  last  mentioned  false,  forged,  and  coun- 
terfeited paper  writing,  partly  written  and  partly  printed,  pur- 
porting to  be  a  true  and  genuine  promissory  note  for  the  pay- 
ment of  money,  called  a  bank  note  of  the  Bank  of  North 
America,  he  the  said  J.  S.,  at  the  time  of  uttering  and  publish- 
ing the  same,  then  and  there  well  knowing  the  same  to  be  false, 

[g)  Com.  V.  Searle,  2  Binn.  332.  The  then  Pennsylvania  act  of  assembly, 
making  penal  the  passmg  of  counterfeit  bank  notes,  used  the  expression  "  pass- 
ing" alone,  and  consequently  this  count,  independently  of  the  want  of  the  con- 
clusion against  the  statute,  was  held  not  to  comprehend  the  statutory  misde- 
meanor. It  was  sustained,  however,  at  common  law,  and  it  is  on  this  principle 
that  indictments  in  Pennsylvania  at  common  law,  for  forging  and  uttering  coun- 
terfeit notes  of  foreign  banks,  rest.     See  next  form. 

(h)  As  to  the  averment  of  incorporation,  see  Wh.  Cr.  PI.  &  Pr.  §  110;  Wh. 
Cr.  L.  8th  ed.  §  741  ;  svpra,  notes  to  form  2  and  form  264. 

306 


FORGERY,   COINING,   UTTERING,    ETC.  (295) 

forged,  and  counterfeited,  with  intent  to  defraud,  etc.,(?')  to  the 
evil  example  of  all  others  in  like  case  offending,  and  against, 
etc. 

(295)  Forgery  of  the  note  of  afoi^eign  hank  as  a  misdemeanor  at 

common  law. 

That  A.  B.,  late  of,  etc.,  on,  etc.,  with  force  and  arms,  did 
falsely  make,  forge,  and  counterfeit,  and  cause  and  procure  to 
be  falsely  made,  forged,  and  counterfeited,  a  certain  note  in 
imitation  of,  and  purporting  to  be,  a  note  issued  b}^  the  order  of 
the  president,  directors,  and  company  oi  {stating  the  bank), (J)  for 
the  sum  of  dollars,  purporting  to  be  signed  by  presi- 

dent and  cashier,  payable  to  or  bearer,  on  demand, 

dated  one  thousand  eight  hundred  and  which  said 

falsely  made,  forged,  and  counterfeited  note,  partly  written  and 
partly  printed,  is  in  the  words  and  figures  following:  {setting 
forth  the  note),  with  intent  to  defraud  the  said  {if  there  be 

proof  of  the  incorjporation  of  the  bank,  or  the  chaHer  is  one  of  which 
the  court  takes  judicial  notice,  you  can  point  the  intent  at  it,  if  not,  at 
the  'party  to  whom  the  note  was  probably  meant  to  be  passed  ;  a  general 
intent  to  defraud  the  people  of  the  state  or  district  unll  do  lohen  no 
particular  intent  can  be  shown), {k)  against,  etc.  {Conclude  as  in 
book  1,  chapter  3.) 

And  the  inquest  aforesaid,  upon  their  respective  oaths  and 
affirmations  aforesaid,  do  further  present,  that  the  said  A.  B., 
on  the  day  and  year  aforesaid,  at  the  county  and  within  the 
jurisdiction  aforesaid,  with  force  and  arms,  then  and  there  did 
pass,  utter,  and  publish,  and  attempt  to  pass,  utter,  and  publish, 
as  true,  a  certain  false,  forged,  and  counterfeit  note,  purporting 
to  be  a  note  issued  by  the  said  {as  in  last  count),  for  the  sura  of 
dollars,  signed  by  president,  and  cashier,  pay- 

able to  or  bearer,  on  demand,  and  dated  one  thousand 

eight  hundred  and  which  said  false,  forged,  and  counter- 

(i)  As  to  intent,  see  Wh.  Cr.  L.  8th  ed.  §  741  ;  supra,  notes  to  form  264. 

(  /)   See  notes  to  form  264. 

(k)  See  People  v.  Stearns,  2  Wend.  409.  See  next  form  for  the  general 
methods  of  stating  intent  in  such  cases.  An  intent  to  defraud  A.  &  B.  is  sus- 
tained by  proof  of  an  intent  to  defraud  A.  Veasic's  case,  7  (xreenl.  131  ;  Peo- 
ple V.  Curling,  1  Johns.  It.  320;  11.  v.  Hanson,  1  C.  &  M.  334.  Sec  notes  to 
form  264. 

307 


(297)  OFFENCES   AGAINST    PROPERTY. 

feited  note,  partly  written  and  partly  printed,  is  in  the  words 
and  figures  following,  to  wit  {setting  fo7'th  note),  the  said  A.  B., 
then  and  there  well  knowing  the  said  note  to  be  as  aforesaid 
false,  forged,  and  counterfeit,  with  intent  to  defraud  [the  party  on 
vjhom  it  was  passed),  against,  etc.  {Conclude  as  in  book  1,  chap- 
ter 3.) 

(296)  Forging  a  bank  note,  and  uttering  the  same,  under  English 

statute.(f) 

That  J.  B.,  late  of,  etc.,  laborer,  heretofore,  that  is  to  say,  on, 
etc.,  with  force  and  arras,  at,  etc.,  feloniously  did  forge  and  coun- 
terfeit(?/i)  a  certain  bank  note,(>?)  the  tenor(o)  of  which  said 
forged  and  counterfeited  bank  note  is  as  followeth,  that  is  to  say 
(the  note  is  here  set  out  verbatim) ^{'p)  with  intent(g)  to  defraud  the 
governor  and  company  of  the  Bank  of  England, (?•)  against,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(297)  Second  count.     Putting  away  same. 

That  the  said  J.  B.,  heretofore,  that  is  to  say,  on,  etc.,  with 
force  and  arms,  at,  etc.,  did  dispose  of  and  put  away(.s)  a  certain 
forged  and  counterfeited  bank  note,  the  tenor  of  which  said  last 
mentioned  forged  and  counterfeited  bank  note  is  as  followeth, 
that  is  to  8ay,(^)  with  intent  to  defraud  the  governor  and  com- 
pany of  the  Bank  of  England,  he  the  said  J.  B.,  at  the  said  time 
of  his  so  disposing  of  and  putting  away  the  said  last  mentioned 

[l)  This  form  is  found  in  Starkie's  C.  P.  452. 

[m)  These  are  the  words  of  the  statute  ;  it  is  unnecessary  to  allege  that  he  did 
falsely  forge  and  counterfeit.  This  count  is  framed  upon  the  stat.  45  Geo.  III. 
c.  89,  s.  2. 

[n)  It  is  essential  to  show  that  the  instrument  forged  is  of  the  description  pro- 
hibited by  the  statute.  See  notes  to  form  264.  As  to  the  averments  which  are 
necessary,  when  the  forged  writing  does  not  purport  to  be  of  the  kind  prohibited, 
see  Stark.  C.  P.  113. 

{n)  As  to  the  words  by  which  the  instrument  is  usually  introduced,  see  Stark. 
C.  P.  109  ;  Lyon's  case,  Leach,  696  ;  supra^  notes  to  form  264,  etc. 

[p)  As  to  the  accuracy  with  which  the  forged  writing  should  be  set  out,  see 
supra,  notes  to  form  264. 

{q)  See  Stark.  C.  P.  121,  122,  199,  as  to  the  general  necessity  for  averring  an 
intent  to  defraud  in  case  of  perjury,  the  form  of  the  averment,  and  the  effects  of 
variance. 

(r)  As  to  averment  of  charter  of  bank,  see  Wh.  Cr.  PI.  &  Pr.  §  110;  supra, 
notes  to  forms  2,  264. 

(s)  According  to  the  words  of  the  act  45  Geo.  III.  c.  89.  s.  2. 

{t)  Setting  out  the  note. 

308 


.  FORGERY,   COINING,   UTTERING,    ETC.  (301) 

forged  and  counterfeited  bank  note,  then  and  there,  to  wit,  on, 
etc.,  at,  etc.,  well  knowing  such  last  mentioned  note  to  be  forged 
and  counterfeited,  against,  etc.,  and  against,  etc.  (Conclude  as 
in  book  1,  chapter  3.) 

(298)  Third  count.     Forging  promissory  note. 

Feloniously  did  falsely  make,  forge,  and  counterfeit,  and  cause 
and  procure  to  be  falsely  made,  forged,  and  counterfeited,  and 
willingly  act  and  assist  in  the  false  making,  forging,  and 
counterfeiting  a  certain  promissory  note  for  the  payment  of 
money,  the  tenor  of  which  said  last  mentioned  false,  forged, 
and  counterfeited  note  is  as  followeth,  that  is  to  say  {note.,  as 
before)^  with  intention  to  defraud  the  governor  and  company  of 
the  Bank  of  England,  against,  etc.,  and  against,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

(299)  Fourth  count.     Putting  away  same. 

Feloniously  did  dispose  of  and  put  away  a  certain  false,  forged, 
and  counterfeited  promissory  note  for  the  payment  of  money, 
the  tenor  of  which  said  last  mentioned  false,  forged,  and 
counterfeited  note  is  as  followeth,  that  is  to  say  {note^  as  before)^ 
with  intent  to  defraud  the  governor  and  company  of  the  Bank 
of  England,  he  the  said  J.  B.,  at  the  said  time  of  his  so  dis- 
posing of  and  putting  away  the  said  last  mentioned  false, 
forged,  and  counterfeited  note,  then  and  there,  to  wit,  on,  etc., 
at,  etc.,  well  knowing  the  said  last  mentioned  note  to  be  false, 
forged,  and  counterfeited,  against,  etc.,  and  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(300)  Fifth  count.     Same  asjirst,  ivith  intent  to  defraud  J.  S. 

Feloniously  did  forge  and  counterfeit  a  certain  other  bank 
note,  the  tenor  of  which  said  last  mentioned  forged  and 
counterfeited  bank  note  is  as  followeth,  that  is  to  say  {note^  as 
before)^  with  intent  to  defraud  one  J.  S.,  against,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(301)  Sixth  count.     Putting  away  same. 

Feloniously  did  dispose  of  and  put  away  a  certain  forged  and 
counterfeited  bank  note,  the  teuor  of  which  said  last  mentioned 

309 


(304)  OFFENCES    AGAINST    PROPERTY. 

forged  and  counterfeited  bank  note  is  as  followeth,  that  is  to 
say  {noie^  as  before),  with  intent  to  defraud  the  said  J.  S.,  he  the 
said  J.  B.,  at  the  time  of  his  so  disposing  of  and  putting  away 
the  said  last  mentioned  forged  and  counterfeited  bank  note, 
then  and  there,  to  wit,  on,  etc.,  well  knowing  such  last 
mentioned  note  to  be  forged  and  counterfeited,  against,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(302)  Seventh  count.     Same  as  second.,  with  intent  to  defraud  J.  S. 

Feloniously  did  falsely  make,  forge,  and  counterfeit,  and  cause 
and  procure  to  be  falsely  made,  forged,  and  counterfeited,  and 
willingly  act  and  assist  in  the  false  making,  forging,  and 
counterfeiting  a  certain  other  promissory  note  for  the  payment 
of  money,  the  tenor  of  which  said  last  mentioned  forged  and 
counterfeited  note  is  as  followeth,  that  is  to  say  {note,  as  before), 
with  intention  to  defraud  the  said  J.  S.,  against,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(303)  Eighth  count.    Putting  away  same. 

Feloniously  did  dispose  of  and  put  away  a  certain  other  false, 
forged,  and  counterfeited  promissory  note  for  payment  of  moi>ey, 
the  tenor  of  which  said  last  mentioned  false,  forged,  and 
counterfeited  note  is  as  followeth,  that  is  to  say  {note,  as  before), 
with  intention  to  defraud  the  said  J.  S.,  the  said  J.  B.,  at  the 
said  time  of  his  so  disposing  of  and  putting  away  the  said  last 
mentioned  false,  forged,  and  counterfeited  note,  then  and  there, 
to  wit,  on,  etc.,  well  knowing  the  same  last  mentioned  note  to 
be  false,  forged,  and  counterfeited,  against,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(304)  Attempt  to  pass  counterfeit  bank  note,  under  Ohio  statute. 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  in  the  county  of  Hamil- 

ton aforesaid,  did  unlawfully  attempt  to  pass  to  one  M.  N.,  with 
intent  then  and  there  to  defraud  the  said  M.  'N.,  a  certain  forged 
and  counterfeited  bank  note,  as  a  true  and  genuine  bank  note  of 
the  Bank  of  Corning,  given  for  the  payment  of  ten  dollars, 
which  aforesaid  forged  and  counterfeited  bank  note  then  and 
there  was  of  the  tenor  and  effect  following,  to  wit : — 
310 


FORGERY,   COINING,   UTTERING,   ETC. 


(305) 


SB  a 


"  STATE  OF  NEW  YORK, 
No.  2269. 
Ten 

The  Bank  of  Corning 
Will  pay  ten  dollars  to  the  Bearer 
on  demand.     Corning,  March  9,  1854. 


Ten 


Ten 


02 


S.  Mallory,  Cash'r.  H.  W.  Bostwick,  Fres'L" 


he,  the  aforesaid  A.  B.,  then  and  there  well  knowing  the  afore- 
said forged  and  counterfeited  bank  note  to  be  forged  and 
counterfeited;  the  true  and  genuine  of  which  said  bank  notes 
then  circulated  in  this  state  as  and  for  money.(w) 

(305)  Forging  a  certificate  granted  by  a  collector  of  the  customs.{v) 

The  jurors  of  the  United  States  of  America,  within  and  for 
the  circuit  and  district  aforesaid,  on  their  oath  present,  that 

late  of  the  city  and  county  of  New  York,  in  the  circuit 
and  district  aforesaid,  heretofore,  to  wit,  on,  etc.,  with 

force  and  arms,  at  the  city  of  New  York,  in  the  southern  district 
of  New  York  aforesaid,  and  within  the  jurisdiction  of  this  court, 
feloniously  did  falsely  make,  forge,  and  counterfeit  a  certain 
official  document,  granted  by  a  collector  of  customs  by  virtue  of 
his  office,  to  wit,  an  official  document  granted  by  the  collector  of 
the  customs  for  the  port  and  district  of  the  city  of  New  York 
{insert  averment  to  the  effect  that  the  collector^  as  such^  was  charged 
with  the  duties  of  supervisor  of  the  revenue']^  which  said  false,  forged, 
and  counterfeited  official  document  is  as  follows,  that  is  to  say 
(Jiere  insert  the  document  as  altered)^  with  intent  to  defraud  one 

against,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 


(n)  Warren's  C.  L.  247. 

(y)  This  form  was  approved  by  the  district  court  for  the  southern  district  of 
New  York,  and  was  hehl  bad  in  the  circuit  court,  for  want  of  an  averment  that 
the  collector  had  been  charged  with  the  duties  of  supervisor  of  the  revenue.  See 
U.  S.  V.  Schoyer,  2  Bl.  C.  C.  59.  By  making  the  necessary  averment,  in  con- 
formity with  the  act  of  congress,  the  form  in  the  text  may  be  sustained. 

311 


(307)  OFFENCES    AGAINST    PROPERTY. 

Second  count. 

{Same  as  first  count  substituting)',  "with  intent  to  defraud  some 
person  or  persons  to  the  jurors  aforesaid  unknown," /or  "with 
intent  to  defraud  one  ." 

(306)  Third  count.     Causing  and  procuring  forgery.,  etc. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  city  and  county  of  New  York 

in  the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on 

etc.,  with  force  and  arms,  at  the  city  of  New  York,  in  the  cir- 
cuit and  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  feloniously  did  falsely  make,  forge,  and  counterfeit,  and 
cause  and  procure  to  be  falsely  made,  forged,  and  counterfeited, 
and  willingly  aid  and  assist  in  falsely  making,  forging,  and 
counterfeiting  a  certain  official  document,  granted  by  a  col- 
lector of  customs  by  virtue  of  his  office  {insert  here  averment  in 
brackets  as  in  first  count).,  to  wit,  an  official  document  granted  by 
the  collector  of  the  customs  for  the  port  and  district  of  the 
city  of  New  York,  which  said  false,  forged,  and  counterfeited 
official  document  is  as  follows,  that  is  to  say  {as  in  first  and  second 
counts  mentioned).,  with  intent  to  defraud  one  against,  etc., 

and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

Fourth  count. 

{Same  as  third  count.,  substituting) :  "  with  intent  to  defraud 
some  person  or  persons  to  the  said  jurors  unknown,"/or  "with 
intent  to  defraud  one  ." 

(307)  Fifth  count.     Altering,  etc. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  city  and  county  of  New  York,  in 

the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on,  etc., 

with  force  and  arms,  at  the  city  of  New  York,  in  the  circuit 
and  district  aforesaid,  and  within  the  jurisdiction  of  this  court, 
feloniously  did  falsely  alter  a  certain  official  document  granted 
by  a  collector  of  the  customs  by  virtue  of  his  office,  to  wit,  a 
certain  official  document  granted  by  the  collector  of  the  customs 
for  the  port  and  district  of  the  city  of  New  York  {insert  here 
312 


FORGERY,   COINING,   UTTERING,    ETC.  (308) 

averment  in  brackets^  as  before),  which  said  falsely  altered  official 
document  is  in  the  words  following,  that  is  to  say  {here  repeat 
the  document  as  altered^  ivord  for  ivoi'd),  with  intent  to  defraud  the 
United  States  of  America,  against,  etc.,  and  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

Sixth  count. 

{Same  as  fifth  count,  substituting) :  "  with  intent  to  defraud  one 
"for  "  with  intent  to  defraud  the  United  States  of  Amer- 
ica." 

Seventh  count. 

{Same  as  sixth  cou7it,  substituting) :  "  with  intent  to  defraud 
some  person  or  persons  to  the  jurors  aforesaid  as  yet  unknown," 
for  "  with  intent  to  defraud  one  ." 

(308)  Eighth  count.     Altering^  etc.,  averring  specially  the  alterations. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  cit}'-  and  county  of  New  York,  in 

the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on, 

etc.,  having  in  his  possession  a  certain  official  document  granted 
by  a  collector  of  the  customs  by  virtue  of  his  office  [insert  aver- 
ment in  brackets  in  first  count),  to  wit,  an  official  document  granted 
by  the  collector  of  the  customs  for  the  port  and  district  of  the 
city  of  New  York,  which  said  official  document,  granted  as  afore- 
said, was,  when  so  granted,  in  the  words  and  figures  following, 
that  is  to  say  {here  insert  complete  copy  of  original  document,  before 
any  alterations  were  made  in  it),  he  the  said  then  and  there, 

that  is  to  say,  on,  etc.,  with  force  and  arms,  at,  etc.,  and  within 
the  jurisdiction  of  this  court,  feloniously  did  falsely  alter  the 
said  official  document,  by  then  and  there  falsely  altering  {w)  the 
figure  before  written  in  the  number  in  the  said  offi- 

cial document,  and  by  falsely  altering  the  figure  before 

written  in  in  the  said  official  document,  and  by  then  and 

there  falsely  making,  forging,  and  counterfeiting  upon  the  said 
official  document,  in  the  place  of  the  said  figure  before 

written  in  the  said  number  in  the  said  official  document, 

(?y)  The  nature  of  the  alteration  must  be  stated.  Mount,  v.  Com.,  1  Duvall 
(Ky.),  90.      Wh.  Cr.  L.  8th  ed.  §  180  ;  supra,  notes  to  §  264. 

313 


(309)  OFFENCES    AGAINST   PROPERTY. 

the  figure  and  by  then  and  there  falsely  altering  in  the 

place  of  the  said  figure  in  before  written   in  said 

in  the  said  ofiicial  document  the  figure  by  reason 

and  by  means  of  which  said  false  alteration  of  the  said  figure 

and  of  the  said  figure  and  of  falsely  making,  for- 

ging, and  counterfeiting  upon  the  place  of  the  said  figure 
the  figure  and  upon  the  place  of  the  said  figure  the 

figure  the  said  number  before  written  in  the  said 

ofiicial  document  did  become,  import,  and  signify  and  the 

said  before  written  in  the  said  official  document,  did  be- 

come, import,  and   signify  {or  otherwise^  according  to  the 

'peculiarities  of  the  document)^  which  said  falsely  altered  official 
document  is  in  the  words  and  figures  following,  that  is  to  say 
{here  insert  the  document  as  altered)^  with  intent  to  defraud  one 

against,  etc.,  and  against,  etc.     {Conclude  as  in  book  1, 
chapter  3.) 

(309)  Ninth  count.     Same  in  another  shape. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  late  of  the  city  and  county  of  New  York,  in 

the  circuit  and  district  aforesaid,  hertofore,  to  wit,  on,  etc., 

having  in  his  possession  a  certain  official  document  granted  by 
a  collector  of  the  customs  by  virtue  of  his  office,  to  wit,  an  offi- 
cial document  granted  by  the  collector  of  the  customs  for  the 
port  and  district  of  the  city  of  New  York  {insert  here  averment 
in  brackets  in  first  count),  which  said  official  document,  granted 
as  aforesaid,  was,  when  so  granted,  in  the  words  and  figures  fol- 
lowing, that  is  to  say  {insert  document  as  in  eighth  count),  he  the 
said  then  and  there,  that  is  to  say,  on,  etc.,  aforesaid,  with 

force  and  arms,  at  the  city  of  New  York,  in  the  circuit  and  dis- 
trict aforesaid,  and  within  the  jurisdiction  of  this  court,  feloni- 
ously did  falsely  alter  the  said  official  document,  by  then  and 
there  falsely  altering,  etc.  {as  eighth  count  specified),  which  said 
falsely  altered  official  document  is  in  the  words  and  figures  fol- 
lowing, that  is  to  say  {here  insert  copy  of  document  as  altered),  with 
intent  to  defraud  some  person  or  persons  to  the  jurors  aforesaid 
unknown,  against,  etc.,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

314 


FORGERY,   COINING,    UTTERING,   ETC.  (311) 

(310)   Tenth  count.     Uttering  certificate  as  forged. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  city  and  county  of  New  York,  in 

the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on, 

etc.,  with  force  and  arms,  at  the  city  of  New  York,  in  the  cir- 
cuit and  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  feloniously  did  pass,  utter,  and  publish  a  certain  false, 
forged,  and  counterfeited  official  document,  purporting  to  be 
granted  by  a  collector  of  the  customs  by  virtue  of  his  office,  to 
wit,  an  official  document,  purporting  to  be  granted  by  the  col- 
lector of  the  customs  for  the  port  and  district  of  the  city  of 
New  York  [insert  here  averment  in  brackets  in  first  connt},  by  virtue 
of  his  office,  which  said  falsely  altered  official  document  is  as 
follows,  that  is  to  say  {here  insert  copy  of  document  as  altered), 
with  intent  to  defraud  the  United  States,  he  the  said  at 

the  time  of  his  so  passing,  uttering,  and  publishing  the  said 
last  mentioned  falsely  altered  official  document,  then  and  there, 
to  wit,  on,  etc.,  at  the  said  city  of  New  York,  in  the  circuit  and 
district  aforesaid,  and  within  the  jurisdiction  of  this  court,  well 
knowing  such  last  mentioned  official  document  to  be  falsely 
altered  as  aforesaid,  against,  etc.,  and  against,  etc.  {Conclude  as 
in  hook  1,  chapter  3.) 

Eleventh  count. 

{Same  as  tenth  count,  substituting) :  "with  intent  to  defraud 
one  "for  "  with  intent  to  defraud  the  United  States." 

Twelfth  count. 

{Same  as  eleventh  count,  substituting):  "with  intent  to  defraud 
some  person  or  persons  to  the  jurors  aforesaid  as  yet  unknown," 
for  "  with  intent  to  defraud  one  ." 

(311)   Thirteenth  count.     Uttering  certificate  as  altered. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  city  and  county  of  New  York,  in 

the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on, 

etc.,  with  force  and  arms,  at  the  city  of  New  York,  in  the  cir- 
cuit and  district  aforesaid,  and  within  the  jurisdiction  of  this 

315 


(312)  OFFENCES  AGAINST  PROPERTY. 

court,  feloniously  did  attempt  to  pass,  utter,  and  publish  a  cer- 
tain falsely  altered  official  document,  purporting  to  be  granted 
by  a  collector  of  the  customs  by  virtue  of  his  office,  to  wit, 
purporting  to  be  an  official  document  granted  by  the  collector 
of  the  customs  for  the  port  and  district  of  the  city  of  New  York 
{insert  here  averment  in  brackets  in  first  count)^  which  said  falsely 
altered  official  document  is  as  follows,  that  is  to  say  {here  insert 
a  copy  of  the  document  as  altered),  with  intent  to  defraud  the 
United  States  of  America,  he  the  said  at  the  said  time  of 

his  so  passing,  uttering,  and  publishing  the  said  last  mentioned 
falsely  altered  official  document,  then  and  there,  to  wit,  on,  etc., 
at  the  city  of  New  York,  in  the  circuit  and  district  aforesaid, 
and  within  the  jurisdiction  of  this  court,  well  knowing  such 
last  mentioned  official  document  to  be  falsely  altered,  against, 
etc.,  and  against,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

Fourteenth  count. 

{Same  as  thirteenth  count,  substituting) :  "with  intent  to  defraud 
one  ,"/o?'"with  intent  to  defraud  the  United  States  of 

America." 

Fifteenth  count. 

{Same  as  fourteenth  count,  substituting) :  "with  intent  to  defraud 
Bome  person  or  persons  to  the  jurors  aforesaid  as  yet  unknown," 
for  "  with  intent  to  defraud  one  ." 

(312)  Forging  a  treasury  note. 

Southern  District  of  New  York,  ss.  The  jurors  of  the  United 
States  of  America,  within  and  for  the  circuit  and  district  afore- 
said, on  their  oath  present,  that  late  of  the  city  and  county 
of  New  York,  in  the  circuit  and  district  aforesaid,  hereto- 
fore, to  wit,  on,  etc.,  with  force  and  arms,  at  the  city  of  New 
York,  in  the  circuit  and  district  aforesaid,  and  within  the  jurisdic- 
tion of  this  court,  feloniously  did  falsely  make,  forge,  and  coun- 
terfeit a  certain  treasury  note,  which  said  false,  forged,  and  coun- 
terfeited treasury  note  is  as  follows,  that  is  to  say  {here  insert  a 
l^erfect  copy  of  the  note  as  counterfeited),  on  which  said  note  was 
indorsed  "  ,"  with  intent  to  defraud  the  United  States  of 
316 


FORGERY,   COINING,   UTTERING,    ETC.  (S14) 

America,  against,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

Second  count 

{Same  as  first  county  substituting):  "with  intent  to  defraud  one 
,"  for  "  with   intent  to  defraud  the  United   States  of 
America." 

Third  count. 

{Same  as  second  county  substituting):  "with  intent  to  defraud 
some  person  or  persons  to  the  jurors  aforesaid  unknown," /or 
"  with  intent  to  defraud  one  ." 

(313)  Fourth  count.     Causing  and  -procuring^  etc. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  city  and  county  of  New  York, 

in  the  circuit  and  district  aforesaid  {state  occupation)^  heretofore, 
to  wit,  on,  etc.,  with  force  and  arms,  at  the  city  of  New  York, 
in  the  circuit  and  district  aforesaid,  and  within  the  jurisdiction 
of  this  court,  feloniously  did  falsely  make,  forge,  and  counter- 
feit, and  cause  and  procure  to  be  falsely  made,  forged,  and 
counterfeited,  and  willingly  aid  and  assist  in  falsely  making, 
forging,  and  counterfeiting,  a  certain  instrument,  for  the  pay- 
ment of  money,  called  a  treasury  note,  which  said  last  men- 
tioned false,  forged,  and  counterfeited  instrument,  for  the  pay- 
ment of  money,  called  a  treasury  note,  is  as  follows  {insert  copy 
of  note  as  in  preceding  counts),  on  which  said  note  was  then  and 
there  indorsed  "  ,"  with  intent  to  defraud  the  United  States 

of  America,  against,  etc.,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(314)  Fifth  count.     Altering, ^tc. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  city  and  county  of  New  York, 

in  the  circuit  and  district  aforesaid,  heretofore,  to  wit, 

on,  etc.,  having  in  his  possession  a  certain  treasury  note,  in  the 
words,  letters,  and  figures  following,  that  is  to  say  {insert  copy 
of  note  as  in  preceding  counts),  which  said  note  was  indorsed 
"  ,"  he  the  said  then  and  there,  that  is  to  say,  on, 

317 


(315)  OFFENCES   AGAINST    PROPERTY. 

etc.,  with  force  and  arms,  at  the  city  of  New  York,  in  the  cir- 
cuit and  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  feloniously  did  alter,  forge,  and  counterfeit  the  said  treas- 
ury note,  by  then  and  there  falsely  obliterating  and  defacing  the 
figures  {o7'  otherwise)^  before  written  in  in  the  said 

treasury  note,  and  by  then  and  there  falsel}'  making,  forging, 
and  counterfeiting  upon  the  said  treasury  note,  in  the  place  of 
the  said  before  written  in  in  the  said  treasury  note, 

the  by  reason  and  by  means  of  which  said  obliterating 

and  defacing  of  the  said  in  the  said  treasury  note,  and 

of  falsely  making,  forging,  and  counterfeiting  upon  the  place 
of  the  said  in  said  treasury  note,  the  the  said 

before  written  in  in  said  treasury  note,  did  become,  im- 

port,  and   signify  which    altered,   forged,  and   counter- 

feited treasury  note  is  as  follows,  that  is  to  say  {here  insert  a 
comjylete  copy  of  the  note  as  in  preceding  co2mts),  on  which  said 
note  was  indorsed  "  ,"  with  intent  to  defraud  the  United 

States  of  America,  against,  etc.,  and  against,  etc.  {Conclude 
as  in  hook  1,  chapter  3.) 

(315)  Sixth  count.     Passing  note,  etc. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  city  and  county  of  Xew  York,  in 

the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on, 

etc.,  with  force  and  arms,  at  the  city  of  New  York,  in  the  cir- 
cuit and  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  feloniously  did  pass,  utter,  and  publish  a  certain  false, 
forged,  and  counterfeited  treasury  note,  which  said  false,  forged, 
and  counterfeited  treasury  note  is  as  follows,  that  is  to  say 
{here  insert  copy  of  treasury  note  as  in  preceding  counts),  on  which 
said  note  was  indorsed  "  ,"  with  intent  to  defraud  the 

United  States  of  America,  he  the  said  at  the  time  of  his  so 

passing,  uttering,  and  publishing  the  said  last  mentioned  false, 
forged,  and  counterfeited  treasury  note,  then  and  there,  to  wit, 
on,  etc.,  at  the  city  of  New  York,  in  the  circuit  and  district 
aforesaid,  and  within  the  jurisdiction  of  this  court,  well  know- 
ing such  last  mentioned  treasury  note  to  be  false,  forged,  and 
counterfeited,  against,  etc.,  and  against,  etc.  {Conclude  as  in 
book  1,  chapter  8.) 
318 


FORGERY,   COINING,   UTTERING,   ETC.  (317) 

Seventh  count 

{Same  as  sixth  count,  substituting):  "with  intent  to  defraud 
one  <>" for  "with  intent  to  defraud  the  United  States  of 

America." 

(316)  Eighth  count.     Sayne  as  sixth,  in  another  shape. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  late  of  the  city  and  county  of  New  York, 

in  the  circuit  and  district  aforesaid,  heretofore,  to  wit,  on, 

etc.,  with  force  and  arms,  at  the  city  of  New  York,  in  the  cir- 
cuit and  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  feloniously  did  pass,  utter,  and  publish  a  certain  false, 
forged,  and  counterfeited  treasury  note,  of  which  the  purport 
is  as  follows,  that  is  to  say  {here  insert  a  correct  and  complete 
copy  of  the  treasury  note  as  comUerfeited),  which  said  note  was 
then  and  there  indorsed  "  ,"  with  intent  to  defraud  some 

person  or  persons  to  the  jurors  aforesaid  as  yet  unknown,  he  the 
said  at  the  time  of  his  so  passing,  uttering,  and  publish- 

ing the  said  last  mentioned  false,  forged,  and  counterfeited 
treasury  note,  then  and  there,  to  wit,  on,  etc.,  at  the  said  city  of 
New  York,  in  the  circuit  and  district  aforesaid,  and  within  the 
jurisdiction  of  this  court,  well  knowing  such  last  mentioned 
treasury  note  to  be  false,  forged,  and  counterfeited,  against, 
etc.,  and  against,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

Last  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  the  southern  district  of  New  York,  in  the  second 
circuit,  is  the  circuit  and  district  in  which  the  said  was 

first  apprehended  for  the  said  ofience.(:c) 

(317)  Feloniously  altering  a  hank  note.{y) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  having  in  his  possession  a 
bank  note,  whose  tenor  follows,  that  is  to  say  {set  out  the  note), 
feloniously  did  alter  the  said  bank  note  by  then  and  there(2:) 

{x)  See  supra,  3-16,  181,  n.,  287-239. 

{?/)   Stark.  C.  P.  458. 

(2)  See  Mount  v.  Com.,  1  Duv.ill,  00. 

819 


(318)  OFFENCES   AGAINST   PROPERTY. 

falsely  obliterating  and  defacing  the  letters  een  before  printed  in 
the  word  fifteen  in  the  said  blank  note,  and  also  the  letters  een 
before  printed  in  the  word  fifteen^  in  white  letters,  on  a  black 
ground  underneath  the  said  bank  note,  and  by  then  and  there 
falsely  making,  forging,  and  counterfeiting  upon  the  said  bank 
note,  in  the  place  of  the  first  mentioned  letters  een  before 
printed  in  the  word  fifteen  in  the  said  bank  note,  the  letter  y  ; 
and  also  by  then  and  there  falsely  making,  forging,  and  counter- 
feiting upon  the  bank  note,  in  the  place  of  the  said  letters  een, 
before  printed  in  the  word  fifteen,  in  white  letters,  on  a  black 
ground  underneath  the  said  bank  note,  another  letter  y,  by 
reason  and  means  of  which  said  obliterating  and  defacing  the 
letters  een,  before  printed  in  the  said  word  fifteen  in  the  said 
bank  note,  and  also  the  letters  een,  being  before  printed  in  the 
said  ^xov(\.  fifteen,  in  white  letters,  on  a  black  ground  underneath 
the  said  bank  note,  and  of  falsely  making,  forging,  and  counter- 
feiting upon  the  place  of  the  said  letters  een,  before  printed  in 
the  vfov^  fifteen,  in  and  underneath  the  said  bank  note  the  letter 
y  ;  the  letters  fift,  so  remaining  of  the  said  word  fifteen,  before 
printed  in  the  said  bank  note,  with  the  said  first  mentioned  let- 
ter y,  so  falsely  made,  forged,  and  counterfeited  as  aforesaid, 
did  become,  import,  and  signify  fifty  ;  and  the  letters  fift,  so 
remaining  of  the  %^\(i  fifteen  before  printed  in  white  letters  on  a 
black  ground  underneath  the  said  last  mentioned  bank  note, 
with  the  said  other  y,  so  falsely  made,  forged,  and  counterfeited 
as  aforesaid,  did  become,  import,  and  signify  fifty,  which  said 
altered  bank  note  is  in  the  words,  letters,  and  figures  following, 
that  is  to  say  {set  out  the  note  as  altered),  with  intent  to  defraud, 
etc.(«) 

(318)  Having  in  possessioii  forged  bank  notes  without  lawf id  excuse, 
knowing  the  same  to  be  forged.ip) 

That  defendant,  etc.,  feloniously,  knowingly, and  wittingly,  and 
without  lawful  excuse,  had  in  his  possession  and  custody  divers 
forged  and  counterfeited  bank  notes,  that  is  to  say,  one  forged 

(«)  Allege  In  one  count  an  intention  to  defraud  the  governor  and  company  of 
the  I3ank  of  England;  in  another,  an  intention  to  defraud  the  person  to  whom 
it  is  paid,  etc.  ;  add  other  count  alleging  the  forgery  of  the  bank  note  as  altered, 
and  for  altering  with  intent  to  defraud,  etc     See  supra,  forms  302,  303. 

[h]  Stark  C.  P.  454. 

320 


FORGERY,   COINING,   UTTERING,    ETC.  (319) 

and  counterfeited  bank  note,  the  tenor  of  which  said  forsred 
and  counterfeited  bank  note  is  as  follows,  that  is  to  say  {here  the 
note  is  set  out),  and  one  other  forged  and  counterfeited  bank 
note,  the  tenor  of  which  said  last  mentioned  forged  and  counter- 
feited bank  note  is  as  follows,  that  is  to  say  {here  the  other  note  is 
set  out),  he  the  said  A.  B.  then  and  there,  to  wit,  on,  etc.,  at,  etc., 
well  knowing  the  same  notes  to  be  forged  and  counterfeited, 
against,  etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

Feloniously,  knowingly,  wittingly,  and  without  lawful  excuse, 
had  in  his  possession  and  custody  a  certain  other  forged  and 
counterfeited  bank  note,  the  tenor  of  which  said  last  mentioned 
forged  and  counterfeited  bank  note  is  as  folio weth,  that  is  to  say 
{the  first  note  in  the  preceding  count  is  here  set  out  again),  he  the  said 
A.  B.,  then  and  there,  to  wit,  on,  etc.,  at,  etc.,  well  knowing 
the  same  last  mentioned  note  to  be  forged  and  counterfeited, 
against,  etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(319)   Uttering  and  passing  a  counterfeit  bank  bill,  under  §  4,  ch.  96 
of  revised  statutes  of  Vermont.{c) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  wittingly,  deceitfully,  and 
unlawfully  did  utter,  pass,  and  give  in  payment  to  one  E.  W. 
F.,  of  Mendon,  in  the  state  of  Vermont,  one  certain  false,  forged, 
and  counterfeited  bank  note,  which  said  note  was  made  in  imi- 
tation of,  and  did  then  and  there  purport  to  be,  a  bank  note  for 
the  sum  of  five  dollars,  issued  by  the  president,  directors,  and 
company  of  the  Bank  of  Cumberland,  by  and  under  the  author- 
ity of  the  legislature  of  the  state  of  Maine,  one  of  the  United 
States  of  America,  made  payable  to  S.  B,,  or  bearer,  on  demand, 
numbered  two  hundred  and  seventy-four,  and  dated  the  first 
day  of  September,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty-five,  with  the  name  of  S.  E.  C.  thereto  sub- 
scribed as  president  of  said  bank,  and  the  name  of  C.  C.  T. 
countersigned  thereon  as  cashier  of  said  bank,  and  was  in  the 
words  and  figures  following,  that  is  to  say : — 

(c)  Sustained  in  State  i'.  Wilkins,  17  Vt.  151. 
VOL.  I.— 21  321 


(321)  OFFENCES    AGAINST    PROPERTY. 

"  The  State  No.  974  of  Maine. 

"The  President,  Directors,  and  Company  of  the  Bank  of  Cum- 
berland, promise  to  pay  Five  Dollars  to  S.  B.,  or  bearer,  on 

demand. 

Portland,  let  Sept.,  1835. 

"  C.  C.  T.,  Cash'r.  S.  E.  C,  Pres't:' 

He,  the  said  A.  B.,  then  and  there  well  knowing  the  said  note 

to  be  false,  forged,  and  counterfeited  as  aforesaid,  with  intent 

to  defraud  the  said  E.  W.  F.,  contrary,  etc.     {Conclude  as  in 

book  1,  chapter  3.) 

(320)  Uttering  forged  order ^  under  Ohio  statute. 

That  A.  B.,  on  the  twenty-seventh  day  of  July,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  fifty-three,  in  the 

county  of  Cuyahoga  aforesaid,  feloniously  did  utter  and  publish 

as  true  and   genuine,  one  certain   false  and   forged  order  in 

writing,  for  the  payment  of  money,  which  said  false  and  forged 

order  in  writing  is  of  the  tenor  and  eftect  following,  that  is  to 

say: — 

"  Cleveland,  July  27,  '53. 

"Mr.  Ransom,  Please  pay  T.  Donley  $11.30,  and  charge  Schr. 

Fletcher.  E.  Goffet." 

with  intent  thereby  then  and  there  to  prejudice,  damage,  and 

defraud  one  Chancy  S.  Ransom ;  he,  the  said  A.  B.,  at  the  time 

when  he  so  uttered  and  published  the  said  false  and  forged 

order,  then  and  there  well  knowing  the  same  to  be  false  and 

forged.(<:/) 

(321)  Passing  forged  order ^  under  Ohio  statute. 

That  A.  B.,  on  the  thirty-first  day  of  August,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-two,  in  the 
county  of  Hamilton  aforesaid,  did  unlawfully  falsely  utter,  pub- 
lish, and  put  off  to  one  M.  N.,  a  certain  false,  forged,  and  coun- 
terfeited order,  as  a  true  and  genuine  order  of  0.  P.,  given  for 
the  payment  of  six  dollars,  which  aforesaid  forged  order  then 
and  there  was  of  the  tenor  and  effect  following,  to  wit: — 

(d)  Warren's  C.  L.  249. 
322 


FORGERY,   COINING,   UTTERING,   ETC.  (323) 

"  August  Slst,  A.  D.  1852. 

"Mr.  M. IST ,  Sir,  Please  to  let  the  bearer,  or  order, 

have  six  dollars,  and  oblige  yours,  O P ." 

with  the  intent  then  and  there  to  prejudice,  damage,  and  defraud 
the  said  M.  IS.,  he  the  said  A.  B.,  then  and  there  well  knowing 
the  said  false,  forged,  and  counterfeited  order  to  be  false,  forged, 
and  counterfeited. (e) 

(322)  Uttering  a  forged  note  purporting  to  he  issued  by  a  bank  in 

another  state,  under  the  Vermont  statute. 

That  J.  S.,  of,  etc.,  in  said  county  of  Windsor,  on,  etc.,  with 
force  and  arms,  at,  etc.,  wittingly,  falsely,  deceitfully,  and  unlaw- 
fully did  utter,  pass,  and  give  in  payment  to  one  A.  L.,  of,  etc., 
one  certain  false,  forged,  and  counterfeit  bank  note,  which  said 
note  was  made  in  imitation  of,  and  did  then  and  there  purport 
to  be  a  bank  note  for  the  sum  of  two  dollars,  issued  by  the  Presi- 
dent, Directors,  and  Company  of  the  Suffolk  Bank,  a  banking 
company  incorporated  by  and  existing  under  the  authority  of 
the  legislature  of  the  state  of  Massachusetts,  one  of  the  United 
States,  made  payable  to  E.  C,  or  bearer,  on  demand,  numbered 
one  thousand  four  hundred  and  ninety-one,  and  dated  Boston, 
May  third,  one  thousand  eight  hundred  and  forty-three,  with 
the  name  of  H.  B.  S.  thereto  subscribed  as  president  of  said 
bank,  and  the  name  of  J.  V.  B.  countersigned  thereon  as  cashier 
of  said  bank,  and  was  in  the  words  and  figures  following,  that 
is  to  say  {here  set  forth  the  note),  he  the  said  J.  S.  well  knowing, 
then  and  there,  the  said  note  to  be  false,  forged,  and  counter- 
feited as  aforesaid,  with  intent  to  defraud  the  said  A.  L.,  con- 
trary, etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(323)  Having  counterfeit  bank  note  in  possession  under  Ohio  statute. 

That  A.  B.  and  C.  D.,  on  the  second  day  of  February,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  fifty-five,  in  the 
county  of  Cuyahoga  aforesaid,  were  detected  with  having  un- 
lawfully in  their  possession  two  hundred  forged  and  counterfeited 
bank  notes,  purporting  to  be  issued  by  the  Mechanics'  Bank  in 

(e)  Warren's  C.  L.  249. 

323 


(324)  OFFENCES  AGAINST  PROPERTY. 

Rhode  Island,  for  the  payment  of  five  dollars  each,  which  said 
forged  and  counterfeited  bank  notes  are  as  follows,  that  is  to  say: 

"  Rhode  Island. 
^     5  THE  MECHANICS'  BANK 

1^         Will  pay  Five  Dollars  on  demand  to  the  bearer.  r 

«     M.  M.  Newport,  October  20,  1854. 

C.  D.  Hammet,  Cash.  Isaac  Gould,  Pres'' 

for  the  purpose  and  with  the  intent  to  sell,  barter,  and  dispose 
of  the  said  forged  and  counterfeit  bank  notes.(/) 

(324)  Having  in  possession  counterfeit  plates,  under  Ohio  statute. 

That  A.  B.  and  C.  D.,  on  the  tenth  day  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty-four,  at 
the  county  of  Hamilton  aforesaid,  did  unlawfully  and  knowingly 
have  in  their  possession,  and  then  and  there  secretly  did  keep  a 
certain  plate,  then  and  there  designed  and  engraved  for  the 
purpose  of  striking  and  printing  false  and  counterfeited  bank 
notes,  to  wit,  for  the  purpose  then  and  there  of  striking  and 
printing  false  and  counterfeited  bank  notes  in  the  likeness  and 
similitude  of  the  true  and  genuine  bank  notes  of  the  Bank  of 
Tennessee,  of  the  denomination  of  twenty  dollars,  and  which 
said  plate  then  and  there  was  etched  and  engraved,  amongst 
other  things,  with  the  words  and  figures  following,  to  wit: — 

4'  1^0. No. ,  B.  B. Capital  five  millions. 

Nashville, ,  18 — .     The  Bank  of  Tennessee  prom- 
ises to  pay  Twenty  Dollars  to  the  Bearer,  on  demand. 

" ,  Cash'r.  ,  Pres't." 

which  said  plate  they,  the  said  A.  B.  and  the  said  C.  D.,  then 
and  there  well  knew  to  be  designed  and  engraved  then  and  there 
for  the  purpose  of  striking  and  printing  false  and  counterfeited 
bank  notes  as  aforesaid,  and  which  said  plate  they,  the  said  A. 
B.  and  C.  D.,  then  and  there  so  had  in  their  possession,  and 
then  and  there  secretly  kept  as  aforesaid,  for  the  purpose  then 
and  there  of  striking  and  printing  false  and  counterfeited  bank 
notes.(^) 

(/)  Warren's  C.  L.  258. 

(S')  Warren's  C.  L.  266.    This  was  sustained  in  State  u.  Sasser,  13  Ohio,  453. 

324 


FORGERY,   COINING,   UTTERING,   ETC.  (326) 

(325)  Secretly  keeping  counterfeiting  instruments^  under  Ohio  statute. 

That  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  and  K.  L.,  on  the  twenty- 
seventh  day  of  April,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  thirty-eight,  at  the  said  county  of  Huron, 
did  knowingly  and  wilfully  have  in  their  possession,  and  secretly 
keep  one  bogus,  one  press,  one  pressing  machine,  one  stamping 
machine,  one  set  of  dies,  one  pair  of  dies,  one  die,  other  two 
dies,  two  milling  machines,  two  edging  machines,  two  sets  of 
milling  bars,  two  pairs  of  milling  bars,  two  moulds,  two  cruci- 
bles, two  files,  two  rasps,  ten  iron  bands,  ten  iron  bolts,  five 
steel  punches,  and  five  steel  pins,  the  same  then  and  there  being 
instruments  for  the  purpose  of  counterfeiting  certain  coins  of 
silver,  called  Mexican  dollars,  the  said  coins  of  silver  then  being 
coins  of  silver  currently  passing  in  the  said  state  of  Ohio,  as 
and  for  money.(A) 

(326)  Having  in  possession  counterfeit  hank  notes,  under  Ohio  statute. 

That  A.  B.  and  C.  D.,  on  the  tenth  day  of  September,  in  the 
year  of  our  Lord  eighteen  hundred  and  forty-four,  at  the  county 
of  Hamilton,  aforesaid,  did  unlawfully  and  falsely  have  in  their 
possession,  and  then  and  there  were  detected  with  so  having  in 
their  possession,  divers,  to  wit,  five  hundred,  false,  forged,  coun- 
terfeited, and  spurious  bank  notes,  then  and  there  made  as  and 
for  true  and  genuine  bank  notes  of  the  Merchants'  and  Me- 
chanics' Bank  of  Wheeling,  of  the  denomination  of  five  dollars, 
one  of  which  said  false,  forged,  counterfeited,  and  spurious  bank 
notes  then  and  there  was  of  tenor  and  efi'ect  following,  to  wit : — 
"  No.  402.  B. 

The  Merchants'  and  Mechanics'  Bank  of  Wheeling 
will  pay  Five  Dollars  on  Demand  to  J.  Gill,  or  bearer, 
at  its  Banking  House,  Wheeling,  Va.    June  9th,  1843. 
"  S.  Brady,  Cash'r.  R.  C.  Woods,  Pres't." 

which  said  false,  forged,  counterfeited,  and  spurious  bank  notes, 
they,  the  said  A.  B.  and  C.  D.,  then  and  there  well  knew  to  be 
false,  forged,  counterfeited,  and  spurious ;  and  which  said  false, 
forged,  counterfeited,  and  spurious  bank  notes,  they,  the  said  A. 
B.  and  C.  D.,  then  and  there  had  in  their  possession  for  the  pur- 

(h)  Warren's  C.  L.  263. 

325 


(328)  OFFENCES    AGAINST    PROPERTY. 

pose  then  and  there  of  selling,  bartering,  and  disposing  of  the 
same.(f)     {Conclude  as  in  book  1,  chapter  3.) 

(327)  Having  in  possession  forged  note  of  United  States  Bank, 
under  the  Vermont  statute.{j) 

That  W.  R.,  late  of  Franklin,  in  the  county  of  Franklin  afore- 
said, heretofore,  that  is  to  say,  on,  etc.,  with  force  and  arms,  at 
Franklin  aforesaid,  in  the  county  of  Franklin  aforesaid,  feloni- 
ously and  unlawfully  did  have  in  his  possession,  with  an  inten- 
tion to  utter,  pass,  and  give  in  payment,  one  certain  false,  forged, 
and  counterfeited  bank  note,  which  said  note  was  made  in  imita- 
tion of,  and  did  then  and  there  purport  to  be,  a  bank  note  for 
the  sum  of  ten  dollars,  issued  by  the  president,  directors,  and 
company  of  the  Bank  of  the  United  States,  made  payable  at 
their  office  of  discount  and  deposit  in  Charleston,  to  J.  J.,  presi- 
dent thereof,  or  to  the  bearer,  on  demand,  numbered  three  thou- 
sand and  fourteen,  and  dated  at  Philadelphia  the  twentieth  day 
of  January,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  twenty-three,  with  the  name  of  L.  C.  thereto  subscribed,  as 
president  of  said  bank,  and  the  name  of  T.  W.  countersigned 
thereon  as  cashier  of  said  bank,  and  was  in  the  words  and  figures 
following,  that  is  to  say  {here  the  bill  teas  set  forth  verbatim).  He 
the  said  W.  R.  then  and  there  well  knowing  the  said  note  to  be 
false,  forged,  and  counterfeited  as  aforesaid,  contrary,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(328)  Forgery,  etc.,  in  New  York.     Having  in  possession  a  forged 
note  of  a  corporation. 

That  A.  B.,  late  of  the  ward  of  the  city  of  'Rew  York, 

in  the  county  of  New  York  aforesaid,  on,  etc.,  with  force  and 

(i)  WaiTcn's  C.  L.  259.  Sustained  by  Supreme  Court  of  Ohio  in  State  v. 
Sasser,  13  Ohio,  453. 

{j)  State  V.  Randal,  2  Aik.  89.  "  In  this  case  it  was  held  that  the  offences  of 
counterfeiting  bills  of  the  Bank  of  the  United  States,  of  passing,  and  of  know- 
ingly having  in  possession  such  counterfeits  with  intent  to  pass  them,  are  cog- 
nizable by  the  courts  of  this  state,  under  the  statute  of  this  state  against  coun- 
terfeiting, notwithstanding  the  congress  of  the  United  States,  in  virtue  of  the 
eighth  section  of  the  first  article  of  the  constitution,  have  legislated  on  the  sub- 
ject, and  given  to  the  courts  of  the  United  States  jurisdiction  of  the  same  of- 
fences. 

"  The  jurisdiction  of  the  United  States  courts  under  the  acts  of  congress,  and 
of  the  courts  of  this  state  under  the  statute  of  Vermont,  over  those  offences,  are 
concurrent  within  this  state." 

326 


FORGERY,   COINING,   UTTERING,   ETC.  (329) 

arras,  at  the  ward  of  the  city  of  New  York,  in  the  county 

of  New  York  aforesaid,  feloniously  had  in  custody  and 

possession,  and  did  receive  from  some  person  or  persons  to  the 
jurors  aforesaid  unknown,  a  certain  forged  and  counter- 

feited negotiable  promissory  note,  for  the  payment  of  money, 
commonly  called  a  bank  note,  purporting  to  have  been  issued  by 
a  certain  corporation  or  company  called  [setting  out  the  name)^ 
duly  authorized  for  that  purpose  by  the  laws  of,  etc.,  which  said 
last  mentioned  false,  forged,  etc.,  and  counterfeited  negotiable 
promissory  note  for  the  payment  of  money  is  as  follows,  that  is 
to  say  {setting  out  the  note),  with  intention  to  utter  and  pass  the 
same  as  true,  and  to  permit,  cause,  and  procure  the  same  to  be 
80  uttered  and  passed,  with  the  intent  to  injure  and  defraud  one 
{setting  out  the  party),  and  divers  other  persons  to  the  jurors 
aforesaid  unknown,  he  the  said  then  and  there  well 

knowing  the  said  last  mentioned  false,  forged,  and  coun- 

terfeited promissory  note,  for  the  payment  of  money,  to  be  false, 
forged,  and  counterfeited  as  aforesaid,  against,  etc.,  and 

against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(329)  Second  count.     Uttering  the  same. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  A.  B.,  etc.,  afterwards,  to  wit,  on  the  day 
and  year  last  aforesaid,  with  force  and  arms,  at  the  ward,  city, 
and  county  aforesaid,  feloniously  and  falsely  did  utter  and  pub- 
lish as  true,  with  intent  to  injure  and  defraud  the  said  C.  D., 
etc.,  and  divers  other  persons  to  the  jurors  aforesaid  unknown, 
a  certain  other  false,  forged,  and  counterfeited  negotiable 

promissory  note  for  the  payment  of  money,  commonly  called  a 
bank  note,  purporting  to  have  been  issued  by  a  certain  corpo- 
ration or  company  called  {giving  name),  duly  authorized  for  that 
purpose  by  the  laws  of  which  said  last  mentioned  false, 

forged,  and  counterfeited  negotiable  promissory  note  for 

the  payment  of  money  is  as  follows,  that  is  to  say  {setting  forth 
note  as  above),  the  said  A.  B.,  at  the  same  time  so  uttered 

and  published  the  said  last  mentioned  false,  forged,  and 

counterfeited  negotiable  promissory  note  for  the  payment  of 
money  as  aforesaid,  then  and  there  well  knowing  the  same  to  be 

327 


(331)  OFFENCES  AGAINST  PROPERTY. 

false,  forged,  and  counterfeited,  against,  etc.,  and  against, 

etc.     {Conclude  as  in  book  1,  cha'pter  3.) 

(330)  Forging  an  instrument  for  payment  of  money ^  under  the  New 

York  statute. 

That  A.  B.,  late  of  tlie  ward  of  the  city  of  'New  York, 

in  the  county  of  New  York  aforesaid,  etc.,  on,  etc.,  with  force 
and  arms,  at  the  ward,  city,  and  county  of  i!^ew  York  afore- 
said, feloniously  did  falsely  make,  forge,  and  counterfeit,  and 
cause  and  procure  to  be  falsely  made,  forged,  and  counterfeited, 
and  willingly  act  and  assist  in  the  false  making,  forging, 
and  counterfeiting  a  certain  for  payment  of  money 

which  said  false,  forged,  and  counterfeited  for  payment  of 

money  is  as  follows,  that  is  to  say  {setting  forth  the  instrument), 
with  intent  to  injure  and  defraud  (setting  forth  the  jpersons  to 
he  defrauded),  and  divers  other  persons  to  the  jurors  aforesaid 
unknown,  against,  etc.,  and  against,  etc.  {Conclude  as  in  hook 
1,  chapter  3.) 

(831)  Second  count.     Uttering  the  same. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  A.  B.,  etc.,  afterwards,  to  wit,  on  the  day 
and  year  last  aforesaid,  with  force  and  arms,  at  the  ward,  city, 
and  county  aforesaid,  feloniously  and  falsely  did  utter  and  pub- 
lish as  true,  with  intent  to  injure  and  defraud  the  said  C.  D., 
etc.,  and  divers  other  persons  to  the  jurors  aforesaid  unknown, 
a  certain  false,  forged,  and  counterfeited  for  payment  of 

money,  which  said  last  mentioned  false,  forged,  and 

counterfeited  for  payment  of  money  is  as  follows,  that  is 

to  say  {setting  forth  the  instrument  as  above),  the  said  A.  B.,  etc., 
at'  the  said  time  he  so  uttered  and  published  the  said  last 
mentioned  false,  forged,  and  counterfeited  for  pay- 

ment of  money  as  aforesaid,  then  and  there  well  knowing  the 
same  to  be  false,  forged,  and  counterfeited,  against,  etc., 

and  against  etc.     {Conclude  as  in  book  1,  chapter  3.) 
328 


FORGERY,   COINING,   UTTERING,   ETC.  (333) 

(332)  Having  in  "possession  forged  notes,  etc.,  with  intent  to  defraud^ 
under  the  New  York  statute.{k) 

That,  etc.,  on,  etc.,  at,  etc.,  feloniously  had  in  his  custody  and 
possession,  and  did  receive  from  some  person  or  persons  to  the 
jurors  aforesaid  unknown,  a  certain  false,  forged,  and  counter- 
feited negotiable  promissory  note  for  the  payment  of  money, 
commonly  called  a  bank  note,  purporting  to  have  been  issued 
by  a  certain  corporation  or  company  called  the  Morris  Canal 
and  Banking  Company,  duly  authorized  for  that  purpose  by 
the  laws  of  the  state  of  New  Jersey,  which  said  last  mentioned 
false,  forged,  and  counterfeited  negotiable  promissory  note  for 
the  payment  of  money  is  as  follows  {setting forth  note  verbatim  et 
literatim),  with  intention  to  utter  and  pass  the  same  to  be  true, 
and  to  permit,  cause,  and  procure  the  same  to  be  so  uttered  and 
passed,  with  the  intent  to  injure  and  defraud  said  Morris  Canal 
and  Banking  Company,  etc.;  he  the  said  S.  D.  then  and  there* 
well  knowing  the  said  note  to  be  false,  forged,  and  counterfeited, 
against,  etc.     {Conclude  as  in  book  1,  chapter  8.) 

(333)  Forgery  of  a  note  of  a  bank  incorporated  in  Pennsylvania^ 
under  the  Pennsylvania  statute.{l) 

That  A.  B.,  late  of  said  county,  on,  etc.,  at  the  county  afore- 
said, and  within  the  jurisdiction  of  this  court,  with  force  and 
arms,  feloniously  did  falsely  make,  forge,  and  counterfeit,  and 
cause  and  procure  to  be  falsely  made,  forged,  and  counterfeited, 
a  certain  note  in  imitation  of,  and  purporting  to  be,  a  note  issued 
by  the  order  of  the  president,  directors,  and  company  of  {setting 
out  the  name  of  the  bayik),  for  the  sum  of  dollars,  purport- 

ing to  be  signed  by  president,  and  cashier,  payable 

to  or  bearer,  on  demand,  dated  one  thousand  eight 

hundred  and  the  said  bank  then  and  there  being  a 

bank  within  this  commonwealth,  incorporated  in  pursuance  of 
an  act  of  the  general  assembly,  which  said  falsely  made,  forged, 
and  counterfeited  note,  partly  written  and  partly  printed,  is  in 

{k)  People  V.  Davis,  2  Wend.  309. 

(/)  For  forging  the  notes  of  a  foreign  bank,  the  above  form  is  good  at  common 
law,  striking  out  the  word  "feloniously,"  tlie  averment  of  tlie  cliarter  of  the 
bank,  and  charging  the  intent  to  be  to  defraud  the  persons  actually  defrauded,  or 
to  defraud  persons  unknown.     See,  for  form  of  same,  supra,  295. 

329 


(335)  OFFENCES    AGAINST    PROPERTY. 

the  words  and  fij^ures  following  {setting  out  the  note),  with  intent 
to  defraud  the  said  bank,  contrary,  etc.,  and  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(334)  Second  count.     Passing  same. 

That,  etc.,  A.  B.,  etc.,  on,  etc.,  at,  etc.,  feloniously  did  pass, 
utter,  and  publish,  and  attempt  to  pass,  utter,  and  publish  as 
true,  a  certain  false,  forged,  and  counterfeit  note,  purporting  to 
be  a  note  issued  by  the  said  {setting  forth  the  hank  as  in  first  count)., 
for  the  sum  of  dollars,  signed  by  president,  and 

cashier,  payable  to  or  bearer,  on  demand,  and  dated 

one  thousand  eight  hundred  and  the  said  then  and 

there,  being  a  bank  within  this  commonwealth,  incorporated  in 
pursuance  of  an  act  of  the  general  assembly ;  which  said  false, 
forged,  and  counterfeit  note,  partly  written  and  partly  printed, 
is  in  the  words  and  figures  following,  to  wit  {setting  out  the  note)., 
•the  said  A.  B.  then  and  there  well  knowing  the  said  note  to  be 
as  aforesaid  false,  forged,  and  counterfeit,  with  intent  to  defraud 
{the  party  to  whom  the  note  was  j^assed),  contrary,  etc.,  and  against, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

(335)  Forgery  of  the  note  of  a  bank  in  another  State,  under  the 
Virginia  statute.{in) 

That  A.  B.,  of  the  county  of  Cabell,  a  certain  false,  forged, 
and  counterfeit  note,  purporting  to  be  a  note  of  the  Bank  of 
Louisville,  for  five  dollars,  feloniously  did  pass  as  a  true  bank 
note  for  five  dollars  to  one  C,  of  the  following  tenor  {setting  forth 
note).,  with  intent  to  defraud  the  said  C,  and  with  intent  also  to 
defraud  the  corporation  of  the  president,  directors,  and  company 
of  the  Bank  of  Louisville,  he  the  said  A.  B.,  at  the  time  of  pass- 
ing the  said  false,  forged, and  counterfeit  bank  note,  well  know- 
ing the  same  to  be  false,  forged,  and  counterfeited,  contrary,  etc, 
{Conclude  as  in  book  1,  chapter  3.) 

{Second  count  in  like  form,  only  charging  the  passing  of  a  differ- 
ent counterfeit  note  of  the  same  bank  to  (7.,  with  intent  to  defraud  C.) 

(m)  Sustained  in  Com.  v.  Murray,  5  Leigh,  720. 

330 


FORGERY,   COINING,    UTTERING,   ETC.  (388) 

(336)  For  making^  forging^  and  counterfeiting^  etc.^  American  coin, 
under  act  of  congress.{ii) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  feloniously  did  falsely  make, 
forge,  and  counterfeit  pieces  of  coin,  of  and  other 

mixed  metals  {or  otherwise),  in  the  resemblance  and  similitude  of 

coin,  called  a  which  said  coin,  called  a 

had  before  the  said,  etc.,  of,  etc.,  been  coined  at  the  mint  of  the 
United  States,  with  intent  to  defraud  some  person  or  persons  to 
the  jurors  aforesaid  unknown,  against,  etc.,  and  against,  etc. 
{Conclude  as  in  hook  1,  chapter  3.) 

(337)  Second  count.     Same,  averring  time  of  coining. 

That  the  said  A.  B.,  on,  etc.,  at,  etc.,  feloniously  did  falsely 
make,  forge,  and  counterfeit  pieces  of        and  other  mixed 

metals,  in  the  resemblance  and  similitude  of        coin,  called 
which  said  coin,  called         after,  etc.,  and  before,  etc.,  had  • 

been  coined  at  the  mint  of  the  United  States  of  America,  with 
intent  to  defraud  some  person  or  persons  to  the  jurors  aforesaid 
unknown,  against,  etc.,  and  against,  etc.  (^Conclude  as  in  book  1, 
chapter  3.) 

(338)  Third  count.     Passing,  etc. 

That  the  said  A.  B.,  on,  etc.,  at,  etc.,  feloniously  did  pass, 
utter,  and  publish  as  true,         pieces  of  false,  forged,  and  coun- 
terfeited coin,  of  metal  in  the  resemblance  and  similitude  of 
coin,  called  a  which  after,  etc.,  and  before,  etc.,  had 

been  coined  at  the  mint  of  the  United  States  of  America,  with 
intent  to  defraud  some  person  or  persons  to  the  jurors  aforesaid 
unknown,  he  the  said  at  the  time  he  so  passed,  uttered,  and 
published  as  true  the  said  last  mentioned  false,  forged,  and  coun- 
terfeited well  knowing  the  same  to  be  false,  forged,  and 
counterfeited,  against,  etc.,  and  against,  etc.  {Conclude  as  in 
book  1,  chalkier  3.) 

(?i)  This  indictment  is  of  the  cliaracter  in  use  in  New  York,  in  the  United 
States  court.  The  forms  No.  841  and  342,  which  liave  been  sustained  by  the 
circuit  court  in  Phihidelphia,  are  much  more  concise,  and  equally  accurate. 

331 


(340)  OFFENCES  AGAINST  PROPERTY. 

(339)  Fourth  count.     Same  in  another  shape. 

That  the  said  A.  B.,  on,  etc.,  at,  etc.,  feloniously  did  pass, 
utter,  publish,  and  sell  as  true  pieces  of  false,  forged,  and 

counterfeited  coin,  in  the  resemblance  and  similitude  of  coin, 
called   a  which   said  coin,  called  had   before, 

etc.,  been  coined  at  the  mint  of  the  United  States  of  America, 
intending  by  such  passing,  uttering,  publishing,  and  selling  as 
true,  the  said  pieces  of  false,  forged,  and  counterfeited 

coin,  to  defraud  some  person  or  persons  to  the  jurors  aforesaid 
unknown,  he  the  said  at  the  time  he  so  passed,  uttered, 

published,  and  sold  as  true  the  said  last  mentioned  false,  forged, 
and   counterfeited  pieces   of  coin,  then   and   there   well 

knowing  the  same  to  be  false,  forged,  and  counterfeited,  against, 
etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

•        {d4i0)  Fifth  count.    Same,  specifying  party  to  be  defrauded. 

That  the  said  A.  B.,  on,  etc.,  at,  etc.,  feloniously  did  pass, 
utter,  and   publish   as  true  pieces  of  false,  forged,  and 

counterfeited  coin,  of  metal  in  the  resemblance  and  similitude 
of  coin,  called  a  which  after,  etc.,  and  before,  etc., 

had  been  coined  at  the  mint  of  the  United  States  of  America, 
with  intent  to  defraud  one  he  the  said  at  the  time 

he  so  passed,  uttered,  and  published  as  true  the  said  last  men- 
tioned false,  forged,  and  counterfeited  well  knowing  the 
same  to  be  false,  forged,  and  counterfeited,  against,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

Sixth  count. 

That  the  said  A.   B.,  on,  etc.,  at,  etc.,  feloniously  did  pass, 
utter,  publish,  and  sell  as  true  pieces  of  false,  forged,  and 

counterfeited  coin,  in  the  resemblance  and  similitude  of  the 
coin  of  the  United  States  of  America,  called  which 

said  coin,  called  had   before,   etc.,  been   coined  at 

the  mint  of  the  United  States,  with  intent  to  defraud  one 
he  the  said  at  the  time  he  so  passed,  uttered,  published, 

and  sold  as  true  the  said  last  mentioned  false,  forged,  and  coun- 
terfeited pieces  of  coin,  then  and  there  well  knowing  the 
332 


FORGERY,   COINING,   UTTERING,   ETC.  (341) 

same  to  be  false,  forged,  and  counterfeited,  against,  etc.,  and 
against,  etc.     (^Conclude  as  in  book  1,  chapter  3.) 

Seventh  count. 

{Same  as  sixth  count,  except  instead  of):  "did  pass,  utter,  pub- 
lish, and  sell  as  true,"  insert  "  did  attempt  to  pass,  utter,  pub- 
lish, and  sell  as  true,"  and  for  "  with  intent  to  defraud  one 
,"  insert  "  with  intent  to  defraud  some  person  or  persons 
to  the  jurors  aforesaid  unknown." 

Eighth  count. 

(Same  as  seventh  count,  except  instead  of):  "had  before,  etc., 
been  coined,  etc.,"  insert  "  had  after,  etc.,  and  before,  etc.,  been 
coined,  etc." 

Ninth  count. 

That  the  said  A.  B.,  on,  etc.,  at,  etc.,  other  pieces  of 

coin,  resembling,  and   intended  to  resemble  and  pass  for  the 
coin  of  the  United  States  of  America,  commonly  known 
by  the  name  of  and  called  of  the  value  of  feloni- 

ously did  attempt  to  pass,  utter,  and  publish,  which  said 
coin  called  after,  etc.,  and  before,  etc.,  had  been  coined 

at  the  mint  of  the  United  States  of  America,  with  the  intent 
to   defraud   one  he   the   said  at   the   time   he   so 

attempted  to  pass,  utter,  and  publish  the  said  last  mentioned 
false,  forged,  and  counterfeited  pieces  of  coin,  then  and 

there  well  knowing  the  same  to  be  false,  forged,  and  counter- 
feited, against,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

Last  count. 

{Same  as  ninth  count,  except  that  instead  of):  "after,  etc.,  and 
before,  etc.,"  insert  "  before,  etc." 

{For  final  count,  see  ante,  17, 18,  181,  ??..,  239,  n.) 

(341)  Counterfeiting  half  dollars  under  act  of  congrcs$.{o) 
That  A.  B.,  etc.,  late,  etc.,  on,  etc.,  with  force  and  arms,  un- 
lawfully and  feloniously  did  falsely  make  and  counterfeit,  and 

(o)  See  act  of  cong.  April  21,  1806;  2  Sts.  at  Large,  404.  Act  of  cong. 
March  3,  1825;  4  Sts.  at  Large,  121,  S  20,  etc. 

333 


(344)  OFFENCES    AGAINST    PROPERTY. 

cause  and  procure  to  be  falsely  made,  forged,  and  counterfeited, 
and  willingly  aid  and  assist  in  falsely  making,  forging,  and 
counterfeiting,  one  coin  in  the  resemblance  and  similitude  of 
the  silver  coin  which  has  been  coined  at  the  mint  of  the  United 
States,  called  a  half  dollar,  contrary,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chajiter  3.) 

{For  final  county  see  17, 18, 181,  ?i.,  239,  n.) 

(342)  Passing  counterfeit  half  dollars^  with  intent  to  defraud  an 
unknoivn  persoji,  under  act  of  congress.{p) 

That  A.  B.,  etc.,  late,  etc.,  on,  etc.,  with  force  and  arras, 
unlawfully  and  feloniously  did  pass,  utter,  and  publish,  and 
attempt  to  pass,  utter,  and  publish  as  true,  a  certain  false,  forged, 
and  counterfeited  coin  in  the  resemblance  and  similitude  of  the 
silver  coin  which  has  been  coined  at  the  mint  of  the  United 
States,  called  a  half  dollar,  he  the  said  then  and  there 

knowing  the  same  to  be  false,  forged,  and  counterfeited,  with 
intent  to  defraud  a  certain  person  to  the  grand  inquest  aforesaid 
unknown,  contrary,  etc.,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(343)  Second  count.     Same,  loith  intent  to  defraud  R.  K. 

That  the  said  A.  B.,  on,  etc.,  at,  etc.,  with  force  and  arms, 
unlawfully  and  feloniously  did  pass,  utter,  and  publish,  and 
attempt  to  pass,  utter,  and  publish  as  true,  a  certain  other  false, 
forged,  and  counterfeited  coin,  in  the  resemblance  and  similitude 
of  the  silver  coin  which  has  been  coined  at  the  mint  of  the 
United  States,  called  a  half  dollar,  he  the  said  then  and 

there  knowing  the  same  to  be  false,  forged,  and  counterfeited, 
with  intent  to  defraud  one  E,.  K.,  contrary,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

{For final  count,  see  ante,  17, 18, 181,  n.,  239,  n.) 

(344)  Having  coining  tools  in  possession,  at  common  law.{q) 
That  A.  B.,  late  of  the  county  aforesaid,  yeoman,  being  a  per- 

(p)  Act  of  cong.  April  21,  1806 ;  2  Sts.  at  Large,  404.  Act  of  cong.  March 
3,  1825  ;  4  Sts.  at  Large,  121,  §  20. 

[q)  Drawn  in  1787,  by  Mr.  Bradford,  the  attorney  general  of  Pennsylvania, 
afterwards  attorney  general  of  the  United  States. 

334 


FORGERY,   COINING,  UTTERING,   ETC.  (344a) 

son  of  ill  name  and  fame,  and  of  dishonest  life  and  conversation, 
and  intending  the  faithful  citizens  of  this  commonwealth  to 
cheat,  deceive,  and  defraud,  the  day,  etc.,  at  stamps 

{made  of  wood,  iron,  or  whatever  it  be),  upon  which  was  then  and 
there  made  and  impressed  the  figure,  resemblance,  and  similitude 
of  a  good  and  genuine  bill  of  credit,  emitted  and  made  current 
by  the  resolves  of  the  honorable  continental  congress,  and  which 
same  stamp  would  then  make  and  impress  the  figure,  resem- 
blance, and  similitude  of  a  good  and  genuine  bill  of  credit,  afore- 
said, without  any  lawful  authority  or  excuse  for  that  purpose, 
knowingl}^  and  unlawfully  had  in  his  custody  and  possession, 
with  an  intent  to  impress,  forge,  and  counterfeit  the  bills  of 
credit  aforesaid,  and  to  pass,  utter,  and  pay  such  forged  and 
counterfeit  bills  of  credit  to  the  faithful  subjects  of  this  com- 
monwealth and  the  United  States  of  America,  to  the  evil  exam- 
ple of  all  others  in  like  case  offending,  and  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(344a)  Having  die  for  counterfeiting  in  possession. 

•The  jurors  for,  etc.,  upon  their  oath  present,  that  W.  F.  H., 
on,  etc.,  one  die,  in  and  upon  which  said  die  was  then  and  there 
made  and  impressed  the  figure  and  apparent  resemblance  of  one 
of  the  sides,  that  is  to  say,  the  obverse  side  of  the  queen's  cur- 
rent gold  coin  called  a  sovereign,  knowingly  and  without  law- 
ful excuse,  feloniously  had  in  the  custody  and  possession  of  him 
the  said  W.  F.  H.,  against  the  form  of  the  statute,  etc. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  W.  F.  H.,  on,  etc.,  in  the  year  aforesaid, 
one  die,  in  and  upon  which  said  die  was  then  and  there  made 
and  impressed  the  figure  and  apparent  resemblance  of  one  of  the 
sides,  that  is  to  say,  the  reverse  side  of  the  queen's  current  gold 
coin  called  a  sovereign,  knowingly  and  without  lawful  excuse, 
feloniously  had  in  the  custody  and  possession  of  him  the  said 
"W.  F.  H.,  against  the  form  of  the  statute,  etc.(r) 

(r)  Sustained  in  R.  v.  Harvey,  11  Cox  C.  C.  663. 

335 


(346)  OFFENCES  AGAINST  PROPERTY. 

(345)  Maki7\g^  forging^  ayid  cou7iterfeiting,  etc. ^foreign  coin,  quarter 
dollar,  under  act  of  congress.{s) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  pieces  of  false,  forged, 

and  counterfeited  coin,  each  piece  thereof  resembling  and 
intended  to  resemble  and  pass  for  a  quarter  of  a  Spanish  milled 
dollar  (or  otherwise)y{ihQ  quarter  of  a  Spanish  milled  dollar  then 
and  there  being  a  foreign  silver  coin,  in  actual  use  and  circula- 
tion as  money  within  the  said  United  States),  feloniously  did 
falsely  make,  forge,  and  counterfeit,  against,  etc.,  and  against, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

(346)  Second  count.     Procuriiig  forgery. 

That  the  said  A.  B.,  heretofore,  on,  etc.,  at,  etc.,  pieces 

of  false,  forged,  and  counterfeited  coin,  each  piece  thereof  re- 
sembling and  intended  to  resemble  and  pass  for  a  quarter  of  a 
Spanish  milled  dollar  (the  quarter  of  a  Spanish  milled  dollar 
then  and  there  being  a  foreign  silver  coin,  in  actual  use  and  cir- 
culation as  money  within  the  said  United  States),  feloniously 
did  cause  and  procure  to  be  falsely  made,  forged,  and  counter- 
feited, against,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

Third  count. 

{Same  as  second  count,  except  instead  of):  "feloniously  did  cause 
and  procure  to  be  falsely  made,  forged,  and  counterfeited,"  insert 
"  feloniously  did  willingly  aid  and  assist  in  falsely  making,  forg- 
ing, and  counterfeiting." 

Fourth  count. 

{Same  as  third  count,  except  instead  of):  "feloniously  did  will- 
ingly aid  and  assist  in  falsely  making,  forging,  and  counterfeit- 
ing," insert  "  feloniously  did  utter  as  true,  for  the  payment  of 
money,  with  intent  to  defraud  some  person  or  persons  to  the 
jurors  aforesaid  as  yet  unknown,  he  the  said  then  and  there 

knowing  the  said  last  mentioned  pieces  of  coin  to  be  false, 

forged,  and  counterfeited." 

(s)  The  defendant  in  this  case  pleaded  guilty. 

336 


FORGERY,   COINING,    UTTERING,    ETC.  (347) 

Fifth  count. 

{Same  as  fourth  county  substituting);  "with  intent  to  defraud 
one  ^'^  f<^r  "  with  intent  to  defraud  some  person  or  persons 

to  the  jurors  aforesaid,  as  yet  unknown." 

{For final  count,  see  17,  18,  181,  n.,  239.) 

(347)  Passing,  uttering,  and  'publishing  counterfeit  coin  of  a  foreign 
country,  under  act  of  congress,  specifying  iparty  to  be  defrauded. 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  did  feloniously  pass,  utter, 
and  publish  as  true,  pieces  of  false,  forged,  and  counter- 

feited coin,  in  the  resemblance  and  similitude  of  the  coin 

called  the  dollar  of  Mexico  {or  otherwise),  which,  before  the  said 
on,  etc.,  had  been  by  law  made  current  in  the  said  United 
States,  he  the  said  knowing  at  the  time  he  so  passed, 

uttered,  and  published  the  said  pieces  of  false,  forged,  and 

counterfeited  coin,  that  the  same  were  false,  forged,  and  coun- 
terfeited, and  intended  by  such  passing,  uttering,  and  publishing, 
to  defraud  one  of  the  said  city  of  New  York,  in  the  cir- 

cuit and  district  aforesaid,  against,  etc.,  and  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

Second  count. 

That  the  said  A.  B.,  etc.,  on,  etc.,  at,  etc.,  other  pieces  of 

false,  forged,  and  counterfeited  coin,  in  the  resemblance  and 
similitude  of  the  foreign  coin  {if  such  is  the  case),  called 

the  of  wiiich,  before  the  said  on,  etc.,  had  been 

by  law  made  current  in  the  said  United  States,  feloniously  did 
pass,  utter,  and  publish  as  true,  he  the  said  knowing  at 

the  time  he  so  passed,  uttered,  and  published  as  true,  the  said 
pieces  of  false,  forged,  and  counterfeited  coin  last  aforesaid, 
that  the  same  were  false,  forged,  and  counterfeited,  and  intendino- 
by  such  passing,  uttering,  and  publishing,  to  defraud  some  per- 
son or  persons  to  the  said  jurors  unknown,  against,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

Third  count. 

{Same  as  second  count,  substituting):  "and  intending  by  such 
passing,  uttering,  and  publishing,  to  defraud  one  of  the 

VOL.  1.— 22  337 


(348)  OFFENCES   AGAINST    PROPERTY. 

city  of  New  York,  in  the  circuit  and  district  aforesaid"  {or  other- 
wise), for  "  and  intending  by  such  passing,  uttering,  and  publish- 
ing, to  defraud  some  person  or  persons  to  the  said  jurors  un- 
known." 

Fourth  count. 

That  the  said  A.  B.,  on,  etc.,  at,  etc.,  other  pieces  of 

false,  forged,  and  counterfeited  coin,  in  the  resemblance  and 
similitude  of  the  coin  called  the  of  a  foreign 

coin  which,  before  the  said  on,  etc.,  by  an  act  of  the  con- 

gress of  the  United  States  of  America,  entitled,  "  An  act  regu- 
lating the  currency  of  foreign  gold  and  silver  coin  in  the  United 
States,"  approved  on  the  third  day  of  March,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  forty-three,  had  been 
made  current  in  the  said  United  States,  feloniously  did  pass, 
utter,  and  publish  as  true,  he  the   said  knowing  at  the 

time  he  so  passed,  uttered,  and  published  as  true  the  said 
pieces  of  false,  forged,  and  counterfeited  coin,  that  the  same  were 
false,  forged,  and  counterfeited,  and  intending  by  such  passing, 
uttering,  and  publishing,  to  defraud  one  of  the  city  and 

county  of  New  York,  in  the  circuit  and  district  aforesaid,  against, 
etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

Last  count. 
{For final  count,  see  17, 18,  181,  n.,  239.) 

(348)  Debasing  the  coin  of  the  United  States,  by  an  officer  employed 
at  the  mint,  under  act  of  congress.{t) 

That  A.  B.,  on,  etc.,  at,  etc.,  being  then  and  there  a  person  and 
officer  employed  at  the  mint  of  the  United  States,  at 
aforesaid,  did  debase  and  make  worse  certain  pieces,  to  wit,  ten 
pieces  of  gold  coin  called  eagles  (which  had  been  struck  and 
coined  at  the  said  mint  of  the  United  States),  as  to  the  propor- 
tion of  fine  gold  therein  contained,  and  which  were  then  and 
there  by  the  said  A.  B.,  he  being  such  person  and  officer 
employed  in  the  said  mint  of  the  said  United  States  as  afore- 
said, made  of  less  weight  and  value  than  the  same  ought  to  be 

(f)  Davis's  Precedents,  138. 

338 


FORGERY,   COINING,   UTTERING,   ETC.  (350) 

by  the  provisions  of  the  several  acts  and  hiws  of  the  said 
United  Seates  relative  thereto,  through  the  default  and  conni- 
vance of  the  said  A.  B.,  he  being  then  and  there  such  person 
and  officer  employed  as  aforesaid  in  the  said  mint,  for  the  pur- 
pose of  unlawful  profit  and  gain,  and  with  an  unlawful  and 
fraudulent  intent  to  debase,  make  worse,  and  render  of  no 
value  the  aforesaid  ten  pieces  of  gold  coin,  against,  etc.,  and 
contrary,  etc.  {Conclude  as  in  hook  1,  chapter  3.) 
{For final  count,  see  17, 18,  181,  n.,  239.) 

(349)  Fraudulently  diminishing  the  coin  of  the  United  States,  under 

act  of  congress.{u) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  did  unlawfully,  fraudulently, 
and  for  gain's  sake,  impair,  diminish,  falsify,  scale,  and  lighten 
certain  pieces,  to  wit,  ten  pieces,  of  gold  coin  called  eagles, 
which  had  been  coined  at  the  mint  of  the  United  States,  with 
intent  to  defraud  some  person  to  the  said  jurors  unknown, 
against,  etc.,  and  contrary,  etc.(v)  {Conclude  as  in  hook  1,  chap- 
ter 3.) 

{For  final  count,  see  17, 18,  181,  n.,  239.) 

(350)   Uttering  a  counterfeit  half  guinea,  at  common  law.{w) 

That  defendant,  on,  etc.,  at,  etc.,  one  piece  of  false  money 
made  of  base  metals,  and  colored  wnth  a  certain  wash  producing 
the  color  of  gold,  to  the  likeness  and  similitude  of  a  piece  of 
good,  lawful,  and  current  gold  money  and  coin  of  this  realm, 
called  a  half  guinea,  unlawfully,  unjustly,  and  deceitfully  did 
utter  and  pay  to  one  C.  D.,  for  and  as  a  piece  of  good  and  law- 
ful gold  money  and  coin  of  this  realm,  called  half  a  guinea,  he 
the  said  A.  B.,  then  and  there  well  knowing  the  said  piece  to 
be  false  and  counterfeit  as  aforesaid,  to  the  great  damage  of  the 
said  C.  D.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(m)  Davis's  Prec.  138.  Act  of  21st  April,  1806,  §  3  ;  Gordon's  Dig.  art. 
3631,  p.  711. 

{v)  If  tiie  coin  debased  -was  foreign  gold  or  silver,  then  say,  "which  said  gold 
coin  were  ten  pieces  of  foreign  gold  coin,  which  were  by  the  laws  of  the  I'liited 
States  made  current,  and  were  in  actual  use  and  circulation  as  money,  within  the 
said  United  States." 

{w)  Stark.  C.  P.  447. 

339 


(352)  OFFENCES  AGAINST  PROPERTY. 

(351)  Passing  counterfeit  coin  similar  to  a  French  coin^  at  common 

law. 

That  M.B.,  late  of,  etc.,  on,  etc.,  at,  etc.,  one  false,  forged,  and 
counterfeited  piece  of  pewter,  lead,  and  other  base  and  mixed 
metals,  composed  in  form,  similitude,  and  likeness  of  a  silver 
French  crown  (the  same  silver  French  crown  then  and  still 
being  a  silver  French  coin  current  and  passing  in  circulation  in 
this  state),  for  and  as  a  good,  true,  and  genuine  French  silver 
crown,  to  a  certain  J.  J.,  then  and  there  did  pass,  pay  away, 
utter,  and  tender  in  payment,  he  the  said  M.  then  and  there 
well  knowing  the  same  piece  to  be  so  as  aforesaid  false,  forged, 
and  counterfeited,  contrary,  etc.,  and  against,  etc.  {Conclude  as 
in  book  1,  chaj^ter  3.) 

(352)  Counterfeiting  United  States  coin,  under  the  Vermont 

statute.{x) 

That  the  respondent,  at  "Weybridge,  "  with  intent  the  good 
people  of  this  state  and  of  the  United  States  to  deceive  and 
defraud,  with  force  and  arms,  on  the  tenth  day  of  April,  A.  D. 
1845,  ten  pieces  of  false,  forged,  and  counterfeit  coin  and  money, 
of  pewter,  lead,  tin,  and  zinc,  and  other  mixed  metals,  in  the 
similitude  of  the  good,  legal,  and  current  money  and  silver  coins 
of  the  United  States,  which  are  current  by  law  and  usage  in  this 
state,  called '  half  dollars,'  then  and  there  unlawfully  and  feloni- 
ously did  forge,  make,  and  counterfeit,  contrary,"  etc.  {Conclude 
as  in  hook   1,  chajHer  3.)     {The  second  count  was  for  having  in 

(x)  State  V.  Griffin,  18  Vt.  198.  "  The  statute,"  it  was  said,  "  on  which  the 
third  count  rested,  is  intended  to  reach  every  part  of  the  apparatus  of  coining, 
however  much  more  might  be  necessary  to  make  that  effective,  and  that,  there- 
fore, if  it  be  shown  that  the  respondent  had  in  his  possession  one-half  of  a  mould, 
it  is  sufficient,  without  proof  that  he  also  had  the  other  half. 

"The  allegation,  in  the  indictment,  that  the  respondent,  'ten  pieces  of  false, 
forged,  and  counterfeit  coin  and  money,'  etc.,  '  unlawfully  and  feloniously  did 
forge,  make,  and  counterfeit,'  etc.,  was  held  sufficient.  The  ambiguity,  it  was 
said,  arises  only  from  the  different  sense  in  which  the  word  '  counterfeit'  is 
used." 

An  indictment  for  having  in  possession  counterfeit  coin,  it  was  ruled,  need  not 
aver  that  the  denomination  of  coin  which  was  counterfeited  was  ''  current  by  law, 
or  usage,  in  this  state,"  it  being  averred,  that  the  coin  was  one  of  the  current 
silver  coins  of  the  United  States.  The  court  will  take  judicial  notice  that  the 
current  coins  of  the  United  States  are  current  also  in  this  state. 

In  such  indictment  it  is  not  necessary  to  aver  of  what  materials  the  counterfeit 
coin  was  made ;  and  if  averred  it  need  not  be  proved. 

340 


FORGERY,   COINING,    UTTERING,    ETC.  (354) 

possession  counterfeit  coin,  icith  intent  to  pass  the  same.  The  third 
count  was  for  having  in  possession  divers  moulds  and  'patterns, 
adapted  and  designed  for  making  counterfeit  coin,  with  intent  to  use 
the  same  in  coining  counterfeit  half  dollars.) 

(353)  Having  in  possession  coining  instruments,  under  the  Rev.  Sts. 

of  Massachusetts,  ch.  127,  §  18.(?/) 

That  A.  B.,  at,  etc.,  on,  etc.,  did  knowingly  have  in  his  pos- 
session a  certain  mould,  pattern,  die,  puncheon,  tool,  and  instru- 
ment adapted  and  designed  for  coining  and  making  one  side  of 
a  counterfeit  coin,  in  the  similitude  of  one  side  or  half  part  of 
a  certain  silver  coin,  called  a  half  dollar,  to  wit,  that  side  or 
half  part  thereof,  which  represents  a  spread  eagle,  and  has  the 
words,  "United  States  of  America  —  Half  Dollar;"  said  coin, 
called  a  half  dollar,  being  current  by  law  and  usage  in  this  state 
and  commonwealth  aforesaid,  with  intent  to  use  and  employ  the 
said  mould,  pattern,  die,  puncheon,  tool,  and  instrument,  and 
cause  and  permit  the  same  to  be  used  and  employed,  in  coining 
and  making  such  false  and  counterfeit  coin  as  aforesaid,  etc. 

(354)  Having  in  possession  ten  counterfeit  pieces  of  coin  with  intent 
to  pass  the  same,  under  Mev.  Sts.  of  Mass.  ch.  127,  §  15.(^) 

That,  etc.,  at,  etc.,  on,  etc.,  had  in  his  custody  and  possession, 
at  the  same  time,  ten  similar  pieces  of  false  and  counterfeit  coin, 
of  the  likeness  and  similitude  of  the  silver  coin  current  within 
this  commonwealth,  by  the  laws  and  usages  thereof,  called 
Mexican  dollars,  with  intent  then  and  there  tlie  said  pieces  of 
false  and  counterfeit  coin  to  utter  and  pass  as  true,  he  the  said 

(?/)  Com.  V.  Kent,  6  Met.  221.  In  this  ease  it  was  held  that  under  the  Kev. 
Sts.  ch.  127,  §  19,  providing  for  the  punislnnent  of  u  person  who  sliall  knowingly 
have  in  his  possession  any  instrument  adapted  and  designed  i'or  coining  or  mak- 
ing counterfeit  coin,  with  intent  to  use  the  same,  or  cause  or  ])ermit  the  same  to 
be  used,  in  coining  or  making  such  coin,  a  person  is  punishable  for  so  having  in 
his  possession,  with  such  intent,  an  instrument  adapted  and  designed  to  make 
one  side  only  of  a  counterfeit  coin. 

On  the  trial  of  a  party  who  is  indicted  for  knowingly  having  in  his  possession 
an  instrument  adapted  and  designed  for  coining  or  making  counterfeit  coin,  with 
intent  to  use  it,  or  cause  or  permit  it  to  be  used,  in  coining  or  making  such  coin, 
he  cannot  give  in  evidence  his  declarations  to  an  artificer,  at  the  time  he  em- 
ployed him  to  make  such  instrument,  as  to  the  purposes  for  which  he  wished  it 
to  be  made. 

{z)  Com.  V.  Fuller,  8  Met.  313,  where  the  e.xceptions  to  this  form  were  over- 
ruled. 

341 


(355)  OFFENCES    AGAINST    PROPERTY. 

D.  R.  F.  then  and  there  well  knowing  the  same  to  be  false  and 
counterfeited,  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(355)  Having  in  custody  less  than  ten  counterfeit  pieces  of  coin, 
under  Rev.  Sts.  of  31ass.  eh.  127,  §  16.(rt) 

That  A.  B.,  on,  etc.,  at,  etc.,  "  had  in  his  custody  and  posses- 
sion (at  the  same  time)  a  certain  piece  of  false  and  counterfeit 
coin,  counterfeited  in  the  likeness  and  similitude  of  the  good 

(a)  Com.  V.  Stearns,  10  Met.  256.  Dewey,  J.:  "  The  objection  of  variance 
between  the  proof  otTered  and  the  offence  charged,  is  not  sustained.  The  crime 
charged  in  the  indictment  is  the  having  in  possession,  etc.,  a  certain  counterfeit 
coin,  in  the  likeness  of  a  silver  coin  called  a  dollar.  The  evidence  shows  this 
coin  to  have  been  in  the  likeness  and  similitude  of  a  Mexican  dollar.  But  a 
Mexican  dollar  is  not  the  less  a  dollar,  nor  is  it  inappropriately  described  as  a 
dollar.  The  term  '  dollar'  does  not  import  a  coin  coined  at  the  mint  of  the 
United  States.  The  United  States  statute  of  1792,  c.  16,  legalized  the  dollar 
of  the  United  States  coinage,  and  the  statute  of  1834,  c.  71,  legalized  the  dollar 
of  Mexico.  Both  are  adopted  by  us,  and  both  are  coins  current,  by  law  and 
usage,  in  this  commonwealth  ;  and  the  having  in  possession  of  counterfeits  of 
either,  with  the  criminal  intent  described  in  the  Rev.  Sts.  ch.  127,  §§  15,  16, 
constitutes  the  statutory  offence. 

"The  only  question  in  the  present  case,  that  can  require  much  consideration, 
is  that  which  arises  upon  the  motion  in  arrest  of  judgment  for  supposed  defi- 
ciency in  the  allegations  in  the  indictment.  As  to  the  fii"st  of  these  reasons,  viz., 
that  the  indictment  is  insufficient,  inasmuch  as  the  term  'dollar,'  therein  used, 
may  denote  a  coin,  the  counterfeiting  whereof  is  not  criminal  by  the  laws  of  this 
commonwealth,  it  seems  to  be  answered  by  the  very  language  of  the  indictment. 
The  dollar  therein  set  forth  is  alleged  to  be  '  in  the  similitude  of  the  legal  silver 
coin  current,  by  law  and  usage,  in  this  commonwealth.'  And  this  is  a  substan- 
tial allegation,  that  must  be  proved.  Hence,  no  dollar  that  is  not  of  the  simili- 
tude of  the  legal  silver  coin  of  this  commonwealth,  will  correspond  with  that  set 
forth  in  the  indictment,  and  furnish  the  proof  requisite  to  a  conviction. 

"  The  remaining  inquiry  is  whether  the  indictment  is  bad  for  uncertainty,  in 
not  specifying,  with  gi-eater  particularity,  the  descriptive  character  of  the  coun- 
terfeit dollar,  as  of  the  coinage  of  the  INIexican  government  and  in  the  similitude 
of  a  Mexican  dollar.  It  is  true  that  the  indictment  must  particularly  set  forth 
the  lind  of  coin  alleged  to  be  counterfeit,  etc.,  as  is  stated  in  2  Hale's  P.  C.  187, 
and  2  Chit.  C.  L.  105,  note  d.  But  that  rule  does  not  affect  the  present  ques- 
tion, nor  present  any  objection  to  this  indictment.  The  kind  of  coin  to  be  set 
forth  and  described,  is  the  denomination  or  name  of  the  coin ;  as  the  dollar,  the 
half  dollar,  or  the  dime,  as  the  case  may  be.  And  if  this  indictment  had  merely 
described  the  alleged  counterfeit  coin  to  be  in  the  likeness  of  silver  coin  current 
in  this  commonwealth,  by  the  laws  and  usages  thereof,  it  would  have  presented 
a  case  liable  to  the  objection  of  a  want  of  particularity  of  description.  But  such 
is  not  the  case  here.  The  coin  is  described  under  its  appropriate  denomination, 
and  that  is  sufficient,  without  adding,  as  a  further  description,  the  place  of  coin- 
age. The  place  of  coinage  of  a  dollar  is  no  necessary  part  of  the  description 
which  is  required  to  be  given  of  a  coin  in  an  indictment.  The  recital  of  the 
various  inscriptions  and  devices  borne  on  it,  and  particularly  the  date  of  its  issue, 
would  seem  to  be  quite  as  material  as  the  place  of  coinage ;  but  these  are  not 
recjuired  to  be  specified.  The  court  are  of  opinion  that  this  objection  is  not  sus- 
tained either  by  authority  or  sound  principle." 

342 


FORGERY,   OOININa,    UTTERING,    ETC.  (358) 

and  legal  silver  coin  current  within  said  commonwealth,  by  the 
laws  and  usages  thereof  called  a  dollar,  with  intent  then  and 
there  to  pass  the  same  as  true ;  he  the  said  A.  B.  then  and  there 
well  knowing  the  same  to  be  false  and  counterfeit,"  etc. 

(356)  For  uttering  and  imhlishing  as  true  a  forged  iworaissory  note. 

Rev.  Sts.  of  Mass.  ch.  127,  §  2.(6) 

That  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid,  in  the 

county  aforesaid,  had  in  his  custody  and  possession  a  certain 
false,  forged,  and  counterfeit  promissory  note,  the  said  C.  D.  then 
and  there  knowing  the  same  to  be  false,  forged,  and  counterfeit, 
which  false,  forged,  and  counterfeit  promissory  note  is  of  the 
tenor  following,  that  is  to  say,  etc. ;  and  that  the  said  C.  D.  did 
then  and  there  feloniously  utter  and  publish  the  same  as  true, 
with  intent  thereby  then  and  there  to  injure  and  defraud  one  J. 
N.,  the  said  C.  D.  then  and  there  knowing  the  said  promissory 
note  to  be  false,  forged,  and  counterfeit ;  against,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

(357)  For  forging  a  promissory  note.    Rev.  Sts.  of  Mass.  ch.  127, 

That  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid,  in  the 

county  aforesaid,  feloniously  did  falsely  make,  forge,  and  coun- 
terfeit a  certain  false,  forged,  and  counterfeit  promissory  note, 
which  false,  forged,  and  counterfeit  promissory  note  is  of  the 
tenor  following,  that  is  to  say,  etc.,  with  intent  thereby  then 
and  there  to  injure  and  defraud  one  J.  N". ;  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(358)  For  counterfeiting  a  bank  bill.     Rev.  Sts.  of  31ass.  ch.  127, 

§4. 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  B.,  in  the  county  of  S.,  feloniously  did 

falsely  make,  forge,  and  counterfeit  a  certain  false,  forged,  and 
counterfeit  bank  bill,  payable  to  the  bearer  thereof,  purporting 

(6)  This  and  the  nine  following  precedents  are  talcen  from  Tr.  &  Heard's 
Free.  224-232. 

343 


(360)  OFFENCES  AGAINST  PROPERTY. 

to  be  issued  by  the  president,  directors,  and  company  of  the 
Merchants'  Bank,  then  being  an  incorporated  banking  company 
established  in  this  state,  to  wit,  at  B.,  in  the  county  of  S.,  and 
commonwealth  aforesaid,  which  said  false,  forged,  and  counter- 
feit bank  bill  is  of  the  tenor  following,  that  is  to  say,  etc.,  with 
intent  thereby  then  and  there  to  injure  and  defraud  one  J.  N. ; 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(359)  For  having  in  possession  at  the  same  time,  ten  or  more  coun- 
tei'feit  hank  hills,  loith  intent  to  utter  and  pass  the  same  as  true. 
Bev.  Sts.  of3Iass.  ch.  127,  §  5. 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  at  B.,  in  the 
county  of  S.,  had  in  his  possession  at  the  same  time,(c)  ten 
similar  false,  forged,  and  counterfeit  bank  bills,  payable  to  the 
bearer  thereof,  purporting  to  be  issued  by  the  president,  direc- 
tors, and  company  of  the  Suffolk  Bank,  then  being  an  incorpo- 
rated banking  company  established  in  this  state,  to  wit,  at  B., 
in  the  county  of  S.,  and  commonwealth  aforesaid,  one  of  which 
said  false,  forged,  and  counterfeit  bank  bills  is  of  the  following 
tenor,  that  is  to  say((/)  {here  insert  a  true  copy  of  all  and  each  of  the 
ten  hills  ;  after  inserting  a  true  copy  of  the  first,  go  on  to  say,  one 
other  of  which  said  false,  forged,  and  counterfeit  bank  bills  is  of  the 
following  tenor,  and  so  on  with  the  whole  of  them) ;  the  said  C.  D. 
then  and  there  knowing  each  and  every  one  of  said  bank  bills 
to  be  false,  forged,  and  counterfeit  as  aforesaid,  with  intent 
then  and  there  to  utter  and  pass  the  same  as  true,  and  thereby 
then  and  thereto  injure  and  defraud  one  J.  N. ;  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(360)  Passing  a  counterfeit  bank  bill.     Rev.  Sts.  of  3Iass.  ch,  127, 

§6. 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  B.,  in  the  county  of  S.,  did  utter  and  pass 

(c)  It  is  necessary  to  aver  that  the  defendant  had  the  bills  in  his  possession 
at  the  same  time.  An  averment  that  he  liad  thoni  in  his  possession  on  the  same 
day,  is  not  sufficient.  Edwards  c.  The  Commonwealth,  19  Pick.  124.  And  see 
R.  V.  Williams,  2  Leach,  C.  C.  (4th  London  ed.),  529. 

(d)  If  the  defendant  has  retained  possession  of  the  bills,  allege  as  follows  : 
"  Each  and  every  one  of  which  said  false,  forged,  and  counterfeit  bank  bills  were 
then  and  there  retained  and  kept  by  the  said  C.  D.,  so  that  the  jurors  aforesaid 
cannot  set  forth  the  tenor  thereof."     Tr.  &  H.  Prec. 

344 


FORGERY,   COINING,   UTTERING,   ETC.  (362) 

to  one  E.  F.  a  certain  false,  forged,  and  counterfeit  bank  bill, 
payable  to  the  bearer  thereof,  purporting  to  be  issued  by  the 
president,  directors,  and  company  of  the  Suifolk  Bank,  then 
being  an  incorporated  banking  company  established  in  this  state, 
to  wit,  at  B.  aforesaid,  in  the  county  aforesaid,  and  common- 
wealth aforesaid,  which  said  false,  forged,  and  counterfeit  bank 
bill  is  of  the  tenor  following,  that  is  to  say,  etc.,  with  intent 
thereby  then  and  there  to  injure  and  defraud  the  said  E.  F.,  the 
said  C.  T>.  then  and  there  knowing  the  said  bank  bill  to  be  false, 
forged,  and  counterfeit,  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(361)  Having  in  j)Ossession  a  counterfeit  hank  bill^  with  intent  to  jpass 
the  same.     Rev.  Sts.  of  3Iass.  ch.  127,  §  8. 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  B.,  in  the  county  of  S.,  had  in  his  possession 

a  certain  false,  forged,  and  counterfeit  bill,  in  the  similitude  of 
the  bills  payable  to  the  bearer  thereof,  and  issued  by  the  presi- 
dent, directors,  and  company  of  the  Boylston  Bank,  then  being 
a  banking  company  established  in  this  state,  to  wit,  at  B.,  in 
the  county  of  S.,  and  commonwealth  aforesaid,  which  said  false, 
forged,  and  counterfeit  bank  bill  is  of  the  tenor  following,  that 
is  to  say,  etc.,  with  intent  then  and  there  to  utter  and  pass  the 
same,  the  said  C.  D.  then  and  there  knowing  the  said  bank  bill 
to  be  false,  forged,  and  counterfeit;  against,  etc.  {Conclude  as 
in  hook  1,  chapter  3.) 

(362)  Making  a  tool  to  be  -used  in  counterfeiting  hank  notes.     Rev. 
Sts.  of  JIass.  ch.  127,  §  9. 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  B.,  in  the  county  of  S.,  did  engrave  and 

make  a  certain  plate,  the  same  being  then  and  there  an  instru- 
ment and  implement  adapted  and  designed  for  the  forging  and 
making  of  false  and  counterfeit  notes,  in  the  similitude  of  the 
notes  issued  by  the  president,  directors,  and  company  of  the 
Suftblk  Bank,  then  being  a  banking  company  legally  established 
in  this  state,  to  wit,  at  B.,  in  the  county  of  S.,  and  commonwealth 
aforesaid;  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

345 


(365)  OFFENCES    AGAINST    PROPERTY. 

(363)  Having  in  possession  a  tool  to  be  used  in  counterfeiting  bank 

notes  with  intent  to  use  the  same.     Mev.  Sis.  of  Mass.  ch.  127, 

§9. 
That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  C,  in  the  county  of  M,,  feloniously  had  in 

his  possession  a  certain  engraved  plate,  the  same  being  then  and 
there  an  instrument  adapted  and  designed  for  the  forging  and 
making.false  and  counterfeit  notes  in  the  similitude  of  the  notes 
issued  by  the  president,  directors,  and  company  of  the  Mer- 
chants' Bank,  then  being  a  banking  company  established  in  this 
state,  to  wit,  at  B,,  in  the  county  of  S.,and  commonwealth 
aforesaid,  with  intent  then  and  there  to  use  the  same  in  forging 
and  making  false  and  counterfeit  notes  in  the  similitude  of  the 
notes  issued  by  the  president,  directors,  and  company  of  the 
said  Merchants'  Bank ;  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(364)  Counterfeiting  current  coin.   Rev.  Sis.  of  Mass.  ch.  127,  §  15. 

That  C.  D.,  late  of  B.,  in  the  county  of  S.,  yeoman,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid, 

in  the  county  aforesaid,  did  counterfeit  a  certain  piece  of  silver 
coin,  current  within  this  state,  to  wit,  the  commonwealth  afore- 
said, by  the  laws  and  usages  thereof,  called  a  dollar;  against, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

(365)  Uttering  and  passing  counterfeit  coin.     Rev.  Sts.  of  Mass.  ch. 

127,  §  16. 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  B.,  in  the  county  of  S.,  a  certain  piece  of 

counterfeit  coin,  counterfeited  in  the  likeness  and  similitude  of 
the  good  and  legal  silver  coin  current  within  this  state,  to  wit, 
the  commonwealth  aforesaid,  by  the  laws  and  usages  thereof, 
called  a  dollar,  did  utter  and  pass  as  true  to  one  E.  F.,  the  said 
C.  J),  then  and  there(e)  well  knowing  the  same  to  be  false  and 
counterfeit;  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(e)  An  indictment  which  charged  the  defendant  with  uttering  a  counterfeit 
half  crown  to  M.  A.  W.,  "  knowing  the  same  to  be  false  and  counterfeit,"  omit- 
ting the  words  "then  and  there,"  was  held  sufficient.  R.  v.  Page,  2  Moody, 
C.  C.  219. 

346 


FORGERY,   COINING,    UTTERING,    ETC.  (366) 

(366)  Coining^  etc.,  under  the  North  Carolina  statute.{f) 

That  the  defendant,  on,  etc.,  'with  force  and  arms,  in  the 
county  aforesaid,  one  pair  of  dies,  upon  which  then  and  there 
were  made  and  impressed  the  likeness,  similitude,  figure,  and 
resemblance  of  the  sides  of  a  lawful  Spanish  milled  dollar, 
without  any  lawful  authority,  then  and  there  feloniously  had 
in  his  possession,  etc.,  for  the  purpose  of  then  and  there  mak- 
ing and  counterfeiting  money,  in  the  likeness  and  similitude 
of  Spanish  milled  silver  dollars,  contrary,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chcvpter  3.) 

(/)  State  V.  Haddock,  2  Hawks,  462.  Taylor,  C.  J. :  "  It  does  not  admit  of 
any  reasonable  dovibt,  that  a  pair  of  dies  is  an  instrument  or  instruments,  within 
the  4th  sect,  of  the  act  of  181  i,  c.  814,  upon  which  the  first  count  is  framed  ;  and 
being  more  generally  used  in  coinage  than  any  other  instrument,  is  one  upon 
which  the  act  would  be  most  likely  to  operate  frequently.  It  may  be  said,  that 
as  the  dies  are  described  as  having  impressed  upon  them  only  the  likeness, 
similitude,  figure,  and  resemblance  of  the  sides  of  a  Spanish  milled  dollar,  and 
not  the  edges,  they  cannot  answer  the  purpose  described  in  the  act,  of  making 
a  counterfeit  similitude  or  likeness  of  a  Spanish  milled  dollar.  But  it  is  for  the 
jury  to  consider  whether  the  dies  be  calculated  to  impress  the  counterfeit  simili- 
tude or  likeness  of  a  dollar ;  for  these  words  in  the  act  extend  the  offence  be- 
yond an  exact  imitation  of  the  figures  and  marks  of  the  coin.  For  if  the  instru- 
ment, in  point  of  fact,  will  impose  on  the  Avorld,  in  general  it  is  sufficient  whether 
the  imitation  be  exact  or  not.  And  this  is  the  construction,  upon  those  highly 
penal  acts,  relative  to  the  coin,  in  England.  Thus,  having  knowingly  in  posses- 
sion a  puncheon  for  the  purpose  of  coining,  is  within  the  stat.  of  8  &  9  Wm.  III., 
though  that  alone,  without  the  counter  puncheon,  will  not  make  the  figure ;  and 
though  such  puncheon  had  not  the  letters,  yet  it  was  held  sufficiently  described 
in  the  indictment  as  a  puncheon  which  would  impress  the  resemblance  of  the 
head  side  of  a  shilling.  1  East,  P.  C.  171.  But  if  the  parts  of  this  indictment 
which  are  employed  in  a  description  of  the  dies  were  altogether  omitted,  the 
charge  Avould  be  within  the  act,  for  it  would  then  read,  that  the  defendants  had 
in  their  possession  a  pair  of  dies,  for  the  purpose  of  making  counterfeit  dollars, 
which  is  the  crime  in  substance  created  by  the  act.  As  I  do  not  perceive  any 
ground  for  any  other  objection  arising  from  the  record,  the  case  having  been  sub- 
mitted without  argument,  my  opinion  is,  that  the  reasons  in  arrest  be  overruled." 
And  in  this  opinion  the  rest  of  the  court  concurred. 

347 


OFFENCES  AGAINST  PROPERTY. 


CHAPTER  II. 

BURGLARY. 

(367)  General  frame  of  indictment  for  burglary  and  larceny,  at  common 

law. 
(3G8)  Burglar)'  and  larceny  at  common  law.     Another  form. 

(369)  Second  count.     Receiving  stolen  goods. 

(370)  Burglary  at  common  law  with  no  larceny. 

(370a)  Entering  dwelling  house  with  intent  to  steal,  under  English  statute. 
(370fe)  House  breaking,  under  English  statute. 

(371)  Breaking  into  dwelling-house,  not  being  armed,  with  intent  to  com- 

mit larceny,  under  IMassachusetts  statute. 

(372)  General  frame  of  indictment  in  New  York. 

(373)  Burglary  by  breaking  out  of  a  house. 

(374)  Burglary  and  larceny,  and  assault  with  intent  to  murder. 

(375)  Burglary,  with  violence. 

(376)  Burglary  and  rape. 

(377)  Burglary  with   intent   to   ravish:    with  a  count   for   burglary  with 

violence,  under  stat.  7  Wm.  lY.  and  1  Yict.  c.  86,  s.  2. 

(378)  Burglary  and  larceny,   at  common    law,  by  breaking   into  a  parish 

church. 

(379)  Burglary  and  larceny.     Breaking  and  entering  a  store  and  stealing 

goods,  under  Ohio  statute. 
(3  79a)  Under  Iowa  statute. 

(379?>)  Under  Indiana  statute. 

(379c)  Under  English  statute. 

(379f?)  Under  Mass.  statute. 

(380)  Burglary  and  larceny.     Breaking  and  entering  a  meeting-house,  and 

stealing  a  communion  cup  and  chalice,  under  Ohio  statute. 

(381)  Burglary.     Breaking  and  entering  a  storehouse  with  intent  to  steal, 

under  Ohio  statute. 

(382)  Burglary.     Breaking  and  entering  a  shop  with  intent  to  steal,  under 

Ohio  statute. 

(383)  Burglary.     Breaking  and  entering  a  dwelling-house  with  intent  to 

steal,  under  Ohio  statute. 

(384)  Breaking   and   entering   a   mansion-house  in   the  daytime,    and  at- 

tempting to  commit  personal  violence,  under  Ohio  statute. 

(385)  Breaking  and  entering  a  mansion-house  in  the  night  season,  and  com- 

mitting personal  violence,  under  Ohio  statute. 

(386)  Against  a  person  for  attempting  to  break  and  enter  a  dwelling-house 

at  night,  at  common  law. 

348 


BURGLARY.  (367) 

(387)  Breaking  a  storehouse  with  intent  to  enter  and  steal,  at  common  law. 

(388)  Being  found  by  night  armed,  with  intent  to  break  into  a  dwelling- 

house,  and  commit  a  felony  therein. 

(367)  General  frame  of  indictment  for  burglary  and  larceny,  at 
common  laiv.{a) 

That  A.  B.,  late  of,  etc.,  in,  etc.,  laborer,  on,  etc.,  about  the 
hour  of  one  of  the  nig;ht,(6)  of  the  same  day,  with  force  and 
arms,  at  the  parish (e)  aforesaid,  in  the  county  aforesaid,  the 
dwelling-house(6^)  of  one  S.  D.(e)  there  situate,(/)  feloniously  and 
burglariously  {g)   did    break   and   enter,(A)  with    intent  {i)  the 

(a)  This  form  is  taken  from  Stark.  C.  P.  435. 

(/>)  It  was  once  thought  necessary  to  allege  a  particular  hour  (State  v.  G.  S., 
1  Tyler,  295),  and  to  state  it  to  be  in  the  night  of  the  preceding  day,  though 
after  twelve  o'clock.  If  the  noctanter  be  omitted  in  the  common  form  averring 
larceny,  the  indictment  will  be  turned  into  one  for  larceny.  Thompson  v.  Com., 
4  Leigh,  652.  It  is  certainly  bad  to  aver  the  offence  to  have  been  committed 
"between  the  hours  of  twelve  at  night  and  nine  in  the  next  morning"  (State  v. 
Mather,  Chip.  32),  though  the  day  and  hour  themselves  are  not  material  to  be 
proved  as  laid.  See  2  East  P.  C.  515  ;  Lewis  v.  State,  16  Conn.  32  ;  Com.  v. 
McLaughlin,  11  Cush.  598  ;  Com.  v.  Marks,  4  Leigh,  658.  But  the  better  opin- 
ion now  is  that  it  is  enough  to  aver  the  offence  to  have  been  in  the  night.  Wh. 
Cr.  PI.  &  Pr.  §  130  ;  Wh.  Cr.  L.  8th  ed.  §  817.  "About  the  hour  of  twelve  is 
sufficient."  State  v.  Seymour,  36  Me.  225;  Methard  v.  State,  19  Oh.  St. 
363. 

(c)  The  place  should  be  correctly  stated. 

(d)  See  on  this  point  Wh.  Cr.  L.  8th  ed.  §  815.  The  house  must  be  described 
as  the  dwelling-house  of  the  real  tenant  (Stark.  C.  P.  79)  ;  and  this  is  the  proper 
description,  though  part  only  of  the  house  be  separately  occupied.  The  particu- 
lar interest  of  the  alleged  owner  is  immaterial.  It  is  enough  if  the  house  be  his. 
People  V.  Van  Blarcum,  2  Johns.  105.  Whether  burglary  may  be  committed  in 
a  church  or  chapel,  see  Wh.  Cr.  L.  8th  ed.  §  782.  If  the  offence  be  committed 
in  an  out-house  within  the  curtilage,  it  should  be  laid  to  have  been  committed  in 
the  dwelling-house  or  in  a  stable,  etc.,  being  part  of  the  dwelling-house.  Dobb's 
case.  East,  P.  C.  513  ;  Garland's  case,  lb.  493  ;  McElrath  v.  State,  55  Ga.  562. 
"Mansion-house  is  an  equivalent."  Com.  v.  Pennock,  3  S.  &  R.  133.  The 
ownership  may  be  averred  to  be  in  the  occupant.  AVh.  Cr.  L.  8th  ed.  §  816. 
An  unoccupied  house  may  be  averred  to  be  the  dwelling-house  of  the  owner. 
Com.  V.  Reynolds,  122  Mass.  454. 

(e)  Under  the  Ohio  statute  it  should  be  alleged  or  implied  that  sonie  one  re- 
sided in  the  house.  Forsyth  v.  State,  6  Ham.  22.  Tlie  ownership  should  be 
correctly  averred.  Stark.  C.  P.  215  ;  AVh.  Cr.  L.  8th  ed.  §  815.  Even  the  first 
names  of  the  owners  must  be  proved  as  laid.     Uoan  /•.  State,  26  lud.  495. 

(/)  These  words  are  essential  (Lewis's  C.  L.  139;  Hale's  P.  C.  (by  Stokes 
&  Ing.)  549  ;  Wh.  Cr.  L.  8th  ed.) ;  and  so  are  the  words  "  dwelling-house"  and 
"  in  the  night."     The  means  of  breaking  and  entering  are  immaterial. 

{g)   See  Wh.  Cr.  L.  8th  ed.  §  114. 

(/«)  This  is  necessary  at  common  law.  Wh.  Cr.  PI.  &  Pr.  §  265  ;  1  Hale, 
549;  Lyon  v.  People,  68  111.  271  ;  Portwood  v.  State,  29  Tex.'  47.  But  the 
term  has  been  held  in  ISIassachusetts  not  necessary  in  statutory  house-breaking. 
Tully  I'.  Com.,  4  Mete.  357. 

(t)  The  averment   of    intent  is    not  necessary,   when  there   is  an   averment 

349 


(368)  OFFENCES  AGAINST  PROPERTY. 

goods  and  chattels  of  the  said  C.  D-O)  in  the  said  dwelling-house 
then  and  there  being,  then  and  there  feloniously  and  burglari- 
ously to  steal,(/;)  take,  and  carry  away  ;  and  one  gold  watch  of 
the  value  of  thirty  dollars,(/)  of  the  goods  and  chattels  of  the 
said  C.  D.,(m)  in  the  said  dwelling-house  then  and  there  being 
found,  then  and  there  feloniously  and  burglariously  did  steal, 
take,  and  carry  away,  against,  etc.  {Conclude  as  in  book  1,  chap- 
ter 3.) 

(368)  Burglary  and  larceny  at  common  law.    Another  form.{n) 

That  J.  B.,  late,  etc.,  on,  etc.,  about  the  hour  of  eleven  in  the 
night  of  the  same  day,  at,  etc.,  the  dwelling-house  of  I.  H.  Jr., 
there  situate,  feloniously,  and  burglariously  did  break  and  enter 
(and  the  goods  and  chattels,  moneys,  and  property  of  the  said 
I.  H.  Jr.,  in  the  said  dwelling-house  then  and  there  being,  then 
and  there  feloniously  and  burglariously  to  steal,  take,  and  carry 
away),  and  then  and  there  in    the  said  dwelling-house,   etc., 

that  a  felony  was  committed.  On  the  other  hand  an  averment  of  intent  will 
sustain  an  indictment  when  there  is  no  averment  of  commission  of  the  intended 
felony,  thougli  in  this  case  there  can  be  no  conviction  for  the  latter  ofience,  and 
the  conviction  must  be  for  the  burglary  only.  Wh.  Cr.  L.  8th  ed.  §  818.  A 
statutable  felony  will  support  the  indictment.  1  Hawk.  c.  38,  s.  38;  R.  i'.  Knight 
and  Rotirey,  East,  P.  C.  610. 

[j)  The  owner  of  the  goods  need  not  be  here  stated.  R.  v.  Clarke,  1  C.  &  K. 
421  ;  State  v.  Morrissey,  22  Iowa,  158.  See  Doan  v.  State,  26  Ind.  495,  supra, 
note  (c). 

[k)  Unless  the  commission  of  a  felony  be  actually  laid,  this  is  essential.  R.  v. 
Lyon,  Leach,  221,  3d  ed.  ;  Wh.  Cr.  L.  8th  ed.  §  818. 

(/)  Describe  the  character  and  value  of  each  article  according  to  the  fact,  as 
in  larceny.     See  infra,  notes  to  form  415. 

(m)  The  ownership  must  be  correctly  stated  if  a  conviction  of  larceny  is  asked. 
Wh.  Cr.  L.  8th  ed.  §§  932  et  seq.  ;  Stark.  C.  P.  210,  215. 

[n)  Com.  V.  Brown,  3  Rawle,  207.  Sentence  was  passed  on  this  indictment  in 
the  supreme  court.  "The  motion  in  arrest  of  judgment,"  said  Gibson,  C.  J., 
"  is  founded  on  the  absence  of  a  direct  averment  that  the  breaking  and  entering 
was  witka  felonious  intent,  and  although  a  larceny  is  charged  to  have  been 
committed  afterwards,  it  is  argued,  with  much  theoretic  plausibility,  that  this 
may  have  been  in  pursuance  of  a  design  subsequently  hatched.  It  is  certain  that 
all  material  facts  must  be  positively  charged  instead  of  being  collected  by  in- 
ferences ;  but  in  this  particular  this  indictment  is  found  to  be  in  strict  accordance 
with  the  most  approved  jirecedents  (Cro.  Cir.  Comp.  203),  and  for  that  reason 
this  motion,  also,  must  be  overruled."  In  Cro.  C.  C.  203,  the  passage  in  brack- 
ets in  the  text,  which  is  plainly  surplusage,  is  omitted.  See  also  3  Chit.  C.  L. 
203.  The  disadvantage  of  this  form  is  that  in  case  the  stealing  is  left  unproved, 
the  defendant  must  be  acquitted  in  toto.  1  Leach,  708;  3  Chit.  C.  L.  1114. 
On  this  account  Lord  Hale  recommends  the  form  first  given,  on  which  the  de- 
fendant may  be  convicted  of  either  burglary  or  larceny,  or  both.  1  Hale  P.  C. 
(ed.  Stokes  &  Ing.)  559. 

350 


BURGLARY.  (370a) 

twenty-eight  yards  of  Scotch  ingrain  carpet,  of  dark  colors,  of 
the  value  of  thirty-  dollars,  etc.,  of  the  goods  and  chattels, 
moneys,  and  property  of  the  said  I.  H.  Jr.,  in  the  said  dwelling- 
house  then  and  there  being  found,  then  and  there  feloniously 
and  burglariously  did  steal,  take,  and  carry  away,  contrary,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(369)  Second  count.     Receiving  stolen  goods. 

That  the  said  J.  B.,  afterwards,  to  wit,  on,  etc.,  at,  etc.,  the 
goods  and  chattels,  moneys,  and  property  aforesaid,  by  some  ill- 
disposed  person  to  the  jurors  aforesaid  yet  unknown,  then  lately 
before  feloniously  and  burglariously  stolen,  taken,  and  carried 
away,  unlawfully,  unjustly,  and  for  the  sake  of  wicked  gain, 
did  receive  and  have  (the  said  J.  B.  then  and  there  well  know- 
ing the  goods  and  chattels,  moneys,  and  property  last  mentioned 
to  have  been  feloniously  and  burglariously  stolen,  taken,  and 
carried  away),  contrary,  etc.,  and  against,  etc.  {Conclude  as  in 
hook  1,  chapter  3.)(o) 

(370)  Burglary  at  common  law  with  no  larceny. 

That  A.  B.,  late,  etc.,  on,  etc.,  about  the  hour  of  eleven  in  the 
night  of  the  same  day,  at,  etc.,  the  dwelling  house  of  one  C.  D., 
there  situate,  feloniously  and  burglariously  did  break  and  enter, 
with  intent  the  goods  and  chattels,  moneys,  and  property  of  the 
said  C.  D.,  in  the  said  dwelling-house  then  and  there  being,  then 
and  there  feloniously  and  burglariously  to  steal,  take,  and  carry 
away,  contrary,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(370a)  Entering  dwelling-house  with  intent  to  commit  felony  under 

English  statute. 

{Comm.encement  as  in  prior  counts) — the  dwelling-house  of  J. 
N.,  situate,  etc.,  feloniously  did  break  and  enter,  with  intent  to 
commit  a  felony  therein,  to  wit  {stating  intended  felony),  against, 
etc.{p) 

(o)  As  to  the  joinder  of  these  counts,  see  siip7-a,  note  to  form  2,  Wh.  Cr.  L. 
8th  ed.  §  819. 

(jy)  Archbold's  C.  P.  19th  ed.  p.  440.     See  K.  v.  Bain,  L.  &  C.  129. 

351 


(372)  OFFENCES  AGAINST  PROPERTY. 

(370^)  House-breaking  uyider  English  statute. 

{Commencement  as  in  jjj'ior  forms) — the  dwelling-house  of  J. 
N.,  situate  in,  etc.,  feloniously  did  break  and  enter,  with  intent 
the  goods  and  chattels  of  the  said  J.  'N.  in  the  said  dwelling- 
house  there  being,  feloniously  to  steal,  take,  and  carry  away,  and 
one  {describe  article)  of  the  value  of  of  the  goods  and  chat- 

tels of  the  said  J.  N.,  then  in  the  said  dwelling-house,  then  and 
there  feloniously  did  steal,  take,  and  carry  away,  against,  etc.{q) 

(371)  Breaking  into  dwelling-house^  not  being  armed,  with  inieyit  to 
commit  larceny,  under  Massachusetts  statute. 

That  J.  T.,  etc.,  on,  etc.,  at,  etc.,  in  the  night-time  of  said  day, 
with  intent  to  commit  the  crime  of  larceny,  did  break  and  enter 
the  dwelling-house  of  one  C.  E.,  there  situate,  said  J.  T,  not 
being  armed,  nor  arming  himself  in  said  house  with  a  dangerous 
weapon,  nor  making  any  assault  upon  any  person  then  being 
lawfully  therein,  against,  etc.,  and  contrary,  etc.(r)  {Conclude  as 
in  book  1,  chapter  3.) 

(372)  General  frame  of  indictment  in  New  York.{s) 

That  A.  B.,  late  of,  etc.,  on,  etc.,  with  force  and  arms,  about 
the  hour  of  eleven  in  the  night  of  the  same  day,  at,  etc.  {setting 
forth  the  object  of  the  burglary),  of  one  C.  D.,  there  situate,  feloni- 
ously and  burglariously  did  break  and  enter,  etc.,  with  intent 
the  goods  and  chattels  of  the  said  C.  D.,  in  the  said  then 

and  there  being,  then  and  there  feloniously  and  burglariously 
to  steal,  take,  and  carry  away,  and  {setting  forth  the  articles  taken), 
of  the  goods,  chattels,  and  property  of  the  said  C.  D.,  in  the 

{q)  Arch.  C.  P.  19th  ed.  p.  436. 

(r)  This  indictment  appears  in  Tully  v.  Com.,  4  Met.  357,  where  the  only 
error  assigned  by  the  learned  and  acute  counsel  who  conducted  the  defence,  was 
that  the  word  "burglariously"  was  omitted.  This,  the  court,  however,  deemed 
unnecessary  under  the  statute. 

(s)  It  has  been  held  in  New  York  that  an  indictment  for  burglary  which  did 
not  allege  that  the  breaking  into  the  dwelling-house  was  effected  in  one  of  the 
methods  prescribed  by  the  statute  (2  R.  8.^668,  §  10;  2  Edm.  St.  688),  was 
not  good  as  an  indictment  for  burglary  in  the  Jirst  degree.  Tliat  where  a  defen- 
dant so  indicted  was  convicted  and  sentenced  as  for  burglary  in  the  first  degree, 
for  over  ten  years,  the  judgment  should  be  reversed  and  a  new  trial  granted. 
People  V.  Burt,  Albany  L.  J.^  Feb.  4,  1871 ;  see  also  People  v.  Van  Gaasbecke; 
9  Abbott,  Prac.  Rep.  N.  S.  518. 

352 


BURGLARY.  (374) 

said  then  and  there  heing,  then  and  there  feloniously  and 

burglariously  did  steal,  take,  and  carry  away,  to  the  great  dam- 
age of  the  said  C.  D.,  against,  etc.,  and  against,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

(373)  Burglary  hy  breaking  out  of  a  house.(t) 

The  jurors,  etc.,  upon  their  oath  present,  th»t  C.  D.,  late  of  B., 
in  the  county  of  S.,  laborer,  on  the  first  day  of  June,  in  the 
year  of  our  Lord  about  the  hour  of  eleven  of  the  clock 

in  the  night  of  the  same  day,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  being  in  the  dwelling-house  of  E. 
F.,  there  situate,  one  watch,  of  the  valjie  of  one  hundred  dol- 
lars, six  tablespoons,  of  the  value  of  four  dollars  each,  and  twelve 
teaspoons,  of  the  value  of  two  dollars  each,  of  the  goods  and 
chattels  of  one  J.  N.,  in  the  same  dwelling-house  then  and  there 
being  found,  then  and  there  feloniously  did  steal,  take,  and  carry 
away.  And  that  the  said  C.  D.,  being  so  as  aforesaid  in  the 
said  dwelling-house,  and  having  so  committed  the  felony  afore- 
said, in  manner  and  form  aforesaid,  therein  afterwards,  to  wit, 
about  the  hour  of  twelve  of  the  clock  in  the  night  of  the  same 
day,  with  force  and  arms,  at  B.  aforesaid,  in  the  county  afore- 
said, feloniously  and  burglariously  did  break  out  of  the  same 
dwelling-house;  and  the  same  goods  and  chattels  then  and 
there  feloniously  and  burglariously  did  steal,  take,  and  carry 
away,  etc.    {Conclude  as  in  book  1,  cha-pter  3.) 

(374)  Burglary  and  larceny,  and  assault  with  intent  to  murder. 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.,  late  of 
B.,  in  the  county  of  S.,  laborer,  on  the  first  day  of  June,  in  the 
year  of  our  Lord  about  the  hour  of  ten  of  the  clock  in  the 

night  of  the  same  day,  with  force  and  arms,  at  B.  aforesaid,  in 
the  county  aforesaid,  tlie  dwelling-house  of  one  J.  ]^.,  there 
situate,  feloniously  and  burglariously  did  break  and  enter,  Avith 
intent  the  goods  and  chattels  of  one  R.  0.,  in  the  said  dwelling- 
house  then  and  there  being,  then  and  there  feloniously  and  bur- 
glariously to  steal,  take,  and  carry  away,  and  then  and  there  in 
the  said  dwelling-house,  two  candlesticks,  of  the  value  of  three 

[t)  Wilmot,  Law  of  Burglary. 

VOL.  I.— 23  353 


(376)  OFFENCES   AGAINST    PROPERTY. 

dollars  each,  one  silver  tankard,  of  the  value  of  fifty  dollars,  and 
one  silver  pitcher,  of  the  value  of  one  hundred  dollars,  of  the 
goods  and  chattels  of  the  said  R.  0.,  in  the  said  dwelling-house 
then  and  there  being  found,  then  and  there  feloniously  and  bur- 
glariously did  steal,  take,  and  carry  away.  And  the  jurora 
aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that  the 
said  C.  D.,  then  and  there,  in  the  said  dwelling-house  then  being, 
upon  the  day  and  at  the  hour  aforesaid,  in  and  upon  the  said 
J.  N.,  in  the  said  dwelling-house  then  and  there  being,  unlaw- 
fully, maliciously,  and  feloniously  did  make  an  assault,  with 
intent  the  said  J.  N.  then  and  there  feloniously,  wilfully,  and  of 
his  malice  aforethought,  to  kill  and  murder,  etc.  {Conclude  as 
iv  hook  1,  chapter  3.) 

(375)  Burglary,  with  violence.{u) 

The  jurors,  etc.,  upon  their  oath  present,  that  C.  D.,  late  of 
B.,  in  the  county  of  S.,  laborer,  on  the  first  day  of  June,  in  the 
year  of  our  Lord  about  the  hour  of  eleven  of  the  clock  in 

the  night  of  the  same  day,  with  force  and  arms,  at  B.  aforesaid, 
in  the  county  aforesaid,  the  dwelling-house  of  one  J.  IST.,  there 
situate,  feloniously  and  burglariously  did  break  and  enter,  with 
intent  to  commit  felony,  and  that  the  said  C.  D.,  in  the  said 
dwelling-house  then  being,  in  and  upon  the  said  J.  N.,  in  the 
said  dwelling-house  then  being,  then  and  there  unlawfully,  mali- 
ciously, and  feloniously  did  make  an  assault,  and  the  said  J.  I^^., 
in  and  upon  the  right  thigh  of  the  said  J.  IST.,  then  and  there  un- 
lawfully, maliciously,  and  feloniously  did  stab,  cut,  and  wound,(2;) 
with  intent  to  do  usto  the  said  J.  IST.,  some  grievous  bodily 
liarm,(w;)  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(376)  Burglary  and  rape.{x) 

The  jurors,  etc.,  upon  their  oath  present,  that  John  Bell,  late 
of  B.,  in  the  county  of  S.,  labore*",  on  the  first  day  of  June,  in 

(w)   Wilmot,  Law  of  Burglary. 

(u)  It  is  not  necessary  to  state  the  instrument  or  means  by  which  the  injury 
was  inflicted.     Rex  v.  Briggs,  1  Moody,  C.  C.  318. 

(iv)  "The  intent  is  here  inserted,"  says  Wilmot  (Law  of  Burglary,  p.  240, 
note  (a),)  "in  order  that  if  the  burglary  should  fail,  the  prisoner  might  still  be 
found  guilty  of  felony,  under  the  fourth  section  of  7  Wm.  IV.  and  1  Vict.  ch.  85." 

(x)  On  this  count,  if  the  evidence  of  actual  i-ape  should  fail,  but  the  jury  should 
be  satisfied  of  the  intent,  the  defendant  could  be  convicted  of  burglary. 

354 


BURGLARY.  (378) 

the  year  of  our  Lord  about  the  hour  of  twelve  of  the  clock 

in  the  night  of  the  same  clay,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  the  dwelling-house  of  one  Edward 
Styles,  there  situate,  feloniously  and  burglariously  did  break  and 
enter,  with  intent  to  commit  felony,  and  then  and  there  upon  one 
Lucy  Styles,  the  wife  of  the  said  Edward  Styles,  violently  and 
feloniously  did  make  an  assault,  and  the  said  Lucy  Styles  then 
and  there  violently,  and  against  her  will,  feloniously  did  ravish 
and  carnally  know,  etc.     {Conclude  as  in  book  1,  chapter  o.) 

(377)  Burglary  with  intent  to  ravish:  with  a  count  for  burglary  with 
violence^  under  st.  7  Wm.  IV.  and  1  Vict.  ch.  86,  s.  2.{y) 

The  jurors,  etc.,  upon  their  oath  present,  that  John  Clarke, 
late  of  B.,  in  the  county  of  S.,  laborer,  on  the  eighth  day  of 
May,  in  the  year  of  our  Lord  about  the  hour  of  twelve  in 

the  night  of  the  same  day,  with  force  and  arras,  at  B.  aforesaid, 
in  the  county  aforesaid,  the  dwelling-house  of  one  James  Thomp- 
son, there  situate,  feloniously  and  burglariously  did  break  and 
enter,  with  intent  one  Hannah  Thompson,  the  wife  of  the  said 
James  Thompson,  violently,  and  against  her  will,  feloniously  to 
ravish  and  carnally  know,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace,  etc. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  John  Clarke,  on  the  day  and  year  afore- 
said, at  B.  aforesaid,  in  the  county  aforesaid,  having  so  burgla- 
riously as  aforesaid  broken  and  entered  the  said  dwelling-house 
of  the  said  James  Thompson,  then  and  there  upon  the  said 
Hannah  Thompson,  in  the  said  dwelling-house  then  and  there 
being,  wilfully,  unlawfully,  and  maliciously  did  make  an  assault, 
and  the  said  Hannah  Thompson  then  and  there  did  strike  and 
beat,  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace,  etc. 

(378)  Burglary  and  larceny,  at  common  law,  by  breaking  into  a 
parish  church.{z) 

The  jurors,  etc.,  on  their  oath  present,  that  Michael  Wilson, 
late  of  B.,  in  the  county  of  S.,  laborer,  on  tlie  first  day  of  June, 

(y)  Wilmot,  Law  of  Burglary,  [z)  Wilinot,  Law  of  Burglary. 

3o5 


(379)  OFFENCES  AGAINST  PKOPERTY. 

in  the  year  of  our  Lord  about  the  hour  of  one  of  the  clock 

in  the  night  of  the  same  day,  with  force  and  arms,  at  B.  afore- 
said, in  the  county  aforesaid,  a  certain  church  there  situate,  that 
is  to  say,  the  parish  church  of  B.  aforesaid,  feloniously  and  bur- 
glariously did  break  and  enter,  and  one  pair  of  candlesticks,  of 
the  value  of  twenty  dollars,  and  one  communion  dish,  of  the 
value  of  fifty  dollars,  of  the  goods  and  chattels  of  Henry  Jack- 
son and  others,  being  parishioners  of  B.  as  aforesaid,  in  the  said 
church  then  and  there  being  found,  then  and  there  feloniously 
and  burglariously  did  steal,  take,  and  carry  away,  against  the 
peace,  etc. 

(379)  Burglary  and  larceny.     Breaking  and  entering  a  store  and 
stealing  goods,  under  Ohio  statute. 

That  A.  B.,  on  the  eleventh  day  of  October,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty,  in  the  night 
season,  to  wit,  about  the  hour  of  eleven  in  the  night  of  the  same 
day,  in  the  county  of  Logan  aforesaid,  into  the  storehouse  there 
situate  of  William  S.  Keller,  Jacob  Keller,  Joshua  M.  Keller, 
and  Joseph  A.  Keller,  partners,  trading  under  the  name  and 
firm  of  "William  S.  Keller  &  Brothers,"  wilfully,  maliciously, 
forcibly,  feloniously,  and  burglariously  did  break  and  enter,  with 
intent  then  and  there  the  goods,  chattels,  and  valuable  property 
of  the  said  William  S.  Keller,  Jacob  Keller,  Joshua  M.  Keller, 
Joseph  A.  Keller,  partners  as  aforesaid,  under  the  name  and  firm 
of  "William  S.  Keller  &;  Brothers,"  in  the  said  storehouse  then 
and  there  being,  then  and  there  feloniously,  wilfully,  and  bur- 
glariously to  steal,  take,  and  carry  away ;  and  then  and  there, 
in  the  said  storehouse,  three  yards  of  cassinette,  of  the  value  of 
three  dollars,  of  the  goods  and  chattels  of  the  said  William  S. 
Keller,  Jacob  Keller,  Joshua  M.  Keller,  and  Joseph  A.  Keller, 
partners  as  aforesaid,  under  the  name  and  firm  of  "William  S. 
Keller  &  Brothers,"  in  said  storehouse  then  and  there  being 
found,  then  and  there  feloniously  and  burglariously  did  steal, 
take,  and  carry  away.     {Conclude  as  in  book  1,  chapter  3.)(a) 

(n)  Warren's  C.  L.  122. 

356 


BURGLARY.  {B19c) 

(379a)  Burglary  and  larency  under  Iowa  statute. 

That  J.  H.,  etc.,  on  or  about  etc.,  at  or  about  the  hour  of  one 
o'clock  in  the  night  of  the  same  day,  with  force  and  arms,  in 
the  county  aforesaid,  one  store  building  of  B.  there  situated, 
wherein  valuable  merchandise  was  kept  for  sale  and  store,  viz., 
pocket-knives,  razors,  and  revolvers,  of  the  value  of  one  hundred 
dollars,  feloniously  and  burglariously  did  break  and  enter  into, 
with  felonious  intent,  the  goods  and  chattels  of  the  said  B.,  in  said 
store  then  and  there  being  found,  then  and  there  feloniously  and 
burglariously  to  steal,  take,  and  carry  away,  and  seven  dozen  of 
pocket-knives,  three  razors,  and  two  revolvers,  of  the  goods  and 
chattels  of  the  said  B.,  and  of  the  value  of  seventy  dollars,  in 
the  said  store  building,  then  and  there  feloniously  and  burglari- 
ously did  steal,  take,  and  carry  away,  contrary,  etc.(6)  {Conclude 
as  in  book  1,  chapter  3.) 

(3796)  Breaking  and  entering  storehouse  in  Indiana. 

That  H.  T.  E.,  late  of  said  county,  on,  etc.,  at,  etc.,  did  then 
and  there  unlawfully  and  feloniously,  in  the  night-time,  bur- 
glariously break  and  enter  into  the  storehouse  of  H.  F.,  there 
situate,  with  intent  then  and  there  one  thousand  cigars,  of  the 
value  of  twenty-five  dollars,  the  personal  property,  goods,  and 
chattels  of  H.  F.,  then  and  there  being,  then  and  there  feloni- 
ously and  burglariously  to  steal,  take,  and  carry  away,  contrary 
to  the  statute  in  such  cases  made  and  provided,  etc.(c)  {Con- 
clude as  in  book  1,  chapter  3.) 

(379(?)  Shop  breaking  under  English  statute. 

{Commencement  as  in  prior  counts) — the  shop  of  J.  N.  situate  in, 
etc.,  feloniously  did  break  and  enter,  with  intent  the  goods  and 
chattels  of  the  said  J.  IsT.,  in  the  said  shop  there  being,  feloni- 
ously to  steal,  take,  and  carry  away,  and  twenty  yards  of  mus- 
lin, of  the  goods  and  chattels  of  the  said  J.  l!^.,  of  the  value  of 
then  in  the  said  shop,  then  and  there  feloniously  did 
steal,  take,  and  carry  away,  against,  etc.(*^/) 

{h)  This  was  sustained  in  State  i\  Hay<len,  45  Iowa,  11. 

(c)  Approved  in  Edwards  v.  State,  G2  Ind.  34. 

[d)  Arch.  C.  P.  19th  ed.  p.  437.     See  R.  v.  Andrews,  C.  &  M.  121. 

357 


(380)  OFFENCES  AGAINST  PROPERTY. 

(379c?)  Breaking  into  shop  and  stealing  under  Massachusetts  statute. 

That  A.  R.  P.,  etc.,  on,  etc.,  and  in  the  night  time  of  the  said 
day,  at,  etc.,  the  building  of  one  G.  H.  1^.,  J.  M.  N".,  and  G.  H. 
L.,  situated  in,  etc.,  the  said  building  being  then  and  there 
occupied  by  said  G.  II.  iT.  [other  names]  as  a  shop,  feloniously 
and  burglariously  did  break  and  enter,  with  intent  then  and 
there  in  said  building,  feloniously  and  burglariously  to  commit 
the  crime  of  larceny,  against  the  peace,  etc. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  said  A.  R.  P.,  on,  etc.,  at,  etc.,  six  dozen  sheep 
roans,  of  the  value  of  five  dollars  each  dozen,  and  five  hundred 
and  sixty  pairs  of  soles,  of  the  value  of  ten  cents  each  pair,  of 
the  goods  and  chattels  of  the  said  G.  H.  N.  [other  names],  and 
then  and  there  in  the  possession  of  said  G.  H.  !N^.  [other  names] 
being  found  in  the  building  of  said  G.  H.  N.  [other  names],  in, 
etc.,  then  and  there  feloniously  did  steal,  take,  and  carry  away, 
in  the  building  aforesaid,  against,  etc. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur- 
ther present,  that  W.  R.  G.,  and  B.  F.  D.,  afterwards,  on,  etc., 
at,  etc.,  the  goods  and  chattels  aforesaid,  so  as  aforesaid,  feloni- 
ously stolen,  taken,  and  carried  away,  feloniously  did  receive 
and  have,  and  did  then  and  there  aid  in  the  concealment  of  the 
same,  the  said  G.  and  D.  each,  then  and  there  well  knowing  the 
said  goods  and  chattels  to  have  been  feloniously  stolen,  taken, 
and  carried  away,  against  the  peace,  etc.(e) 

(380)  Burglary  and  larceny.  Breaking  and  entering  a  meeting-house, 
and  stealing  a  communion  cup  and  chalice,  under  Ohio  statute. 

That  A.  B.,  on  the  sixth  day  of  August,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-two,  at  about  the 
hour  of  eleven  in  the  night  season  of  the  same  day,  at  the  town- 
ship of  in  the  county  of  Cuyahoga  aforesaid,  a  certain 
meeting-house  there  situate  and  being,  called  the  Saint  John's 
Cathedral,  wilfully,  maliciously,  forcibly,  and  burglariously  did 

(e)  It  was  held,  on  this  indictment,  no  misjoinder  to  charge  one  person  with 
breaking  and  entering  a  building  and  stealing  therein,  and  another  person  with 
receiving  the  goods  stolen.     Com.  v.  Darling,  129  Mass.  113. 

358 


BURGLARY.  (382) 

break  and  enter  into,  with  intent  the  goods,  chattels,  and  pro- 
perty of  M.  N.,  of  great  value,  in  said  meeting-house  then  and 
there  being,  feloniously  and  burglariously  to  steal,  take,  and 
carry  away ;  and  then  and  there,  in  the  said  meeting-house,  one 
chalice,  of  the  value  of  sixty  dollars,  and  one  communion  cup, 
of  the  value  of  sixty  dollars,  of  the  personal  goods  and  chattels 
and  property  of  said  M.  N.,  in  the  said  meeting-house  then  and 
there  being  found,  feloniously  and  burglariously  did  steal,  take, 
and  carry  away.     {Conclude  as  in  book  1,  chapter  3.)(/) 

(381)  Burglary.     Breaking  and  entering  a  storehouse  with  intent  to 

steals  under  Ohio  statute. 

That  A.  B.,  on  the  ninth  day  of  February,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-four,  in  the  night 
season  of  the  same  day,  to  wit,  about  the  hour  of  one  at  night, 
in  the  county  of  Hamilton  aforesaid,  into  a  certain  storehouse 
of  one  Isaac  Smith,  there  situate  and  being,  did  wilfully,  mali- 
ciously, burglariously,  and  forcibly  break  and  enter,  with  in- 
tent then  and  there  and  thereby  feloniously  and  burglariously 
to  steal,  take,  and  carry  away  the  personal  goods,  chattels,  and 
property  of  the  said  Isaac  Smith  in  the  said  storehouse  then 
and  there  being.     {Conclude^  ^l<^^){g) 

(382)  Burglary.     Breaking  and  entering  a  shop  with  intent  to  steal, 

under  Ohio  statute. 

That  A.  B.  and  C.  D.,  otherwise  called  E.  F.,  on  the  twenty- 
eight  day  of  January,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  fifty-two,  in  the  night  season  of  the  same 
day,  to  wit,  about  the  hour  of  one  at  night,  at  the  county  of 
Hamilton  aforesaid,  into  a  certain  shop  of  Joseph  Shipley  and 
Hawes  Reed,  there  situate  and  being,  did  wilfully,  maliciously, 
burglariously,  and  forcibly  break  and  enter,  with  intent  then 
and  there  and  thereby  feloniously  and  burglariously  to  steal, 
take,  and  carry  away  the  personal  goods  and  chattels  and  prop- 
erty of  the  said  Joseph  Shipley  and  Hawes  Reed,  in  said  shop 
then  and  there  being.     {Conclude,  etc.){h) 

(/)  Warren's  C.  L.  123  {g)  Warren's  C.  L.  120. 

{Ji)  Warrren's  C.  L.  120. 

359 


(385)  OFFENCES  AGAINST  PROPERTY. 

(383)  Burglary.     Breaking  and  entering  a  dwelling-house  with 
intent  to  steals  under  Ohio  statute. 

That  A.  B.,  on  the  twenty-first  day  of  May,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-five,  in  the 
night  season  of  the  same  day,  to  wit,  about  the  hour  of  one  at 
night,  in  the  county  of  Hamilton  aforesaid,  into  a  certain 
dwelling-house  of  John  M.  Davidson,  there  situate  and  being, 
did  wilfully,  maliciously,  burglariously,  and  forcibly  break  and 
enter  into,  with  intent  then  and  there  and  thereby  the  personal 
goods,  chattels,  property,  and  moneys  of  the  said  John  M. 
Davidson,  in  the  said  dwelling-house  then  and  there  being, 
feloniously,  and  burglariously  to  steal,  take,  and  carry  away. 
{Conclude  as  in  book  1,  chapter  3.)(?") 

(384)  Breaking  and  entering  a  mansion-house  in  ihe  daytimey  and 
attempiivg  to  com.mit  personal  violen-ce,  under  Ohio  statute. 

That  A.  B.,  otherwise  called  C.  D.,  on  the  first  day  of 
!N'overaber,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  forty-six,  to  wit,  in  the  daytime  of  said  day,  in  the  county 
of  Hamilton  aforesaid,  a  certain  mansion-house  of  one  M.  N., 
there  situate,  in  which  said  mansion-house  she  the  said  M.  l!^., 
then  and  there  did  reside  and  dwell,  did  unlawfully  and  forcibly 
break  open  and  enter,  and  then  and  there  in  and  upon  the  said 
M.  N.,  in  said  mansion-house  then  and  there  being,  unlawfully 
and  forcibly  did  make  an  assault,  and  her,  the  said  M.  IST.,  then 
and  there  unlawfully  did  threaten  in  a  menacing  manner,  and 
so  the  said  A.  B.  then  and  there,  in  manner  aforesaid,  in  and 
upon  the  said  M.  ]^.,  unlawfully  did  attempt  to  commit  per- 
sonal violence  and  abuse.     {Conclude  as  in  book  1,  chapter  3.XJ) 

(385)  Breaking  and  entering  a  mansion-house  in  the  night  season, 
and  committing  personal  violence,  under  Ohio  statute. 

That  A.  B.,  on  the  third  day  of  September,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  forty-three,  about 
the  hour  of  nine,  in  the  night  season  of  the  same  day,  in  the 
county  of  Montgomery  aforesaid,  a  certain  mansion-house  there 

(0  Warren's  C.  L.  120.  {J)  Warren's  C.  L.  131. 

360 


BURGLARY.  (388) 

situate,  in  which  said  mansion-house  one  M.  N.  did  then  and 
there  reside  and  dwell,  unlawfully  and  forcibly  did  break  open 
and  enter,  and  in  and  upon  the  said  M.  N.,  then  and  there  in 
said  mansion  being  and  residing,  then  and  there  unlawfully  and 
forcibly  did  make  an  assault,  and  her  the  said  M.  N.  did  then 
and  there  strike,  beat,  and  otherwise  ill-treat,  and  in  and  upon 
the  said  M.  N.  did  then  and  there  unlawfully  commit  personal 
violence  and  abuse.     {Conclude  as  in  book  1,  chapter  3.)(A-) 

(386)  Against  a  person  for  atteinjyiing  to  break  and  enter  a  dwelling- 

house  at  nighty  at  common  law.{l) 

That  J.  O'B.,  late  of,  etc.,  on,  etc.,  at,  etc.,  the  dwelling-house 
of  W.  II.,  there  situate,  about  the  hour  of  twelve  in  the  night- 
time of  the  same  day,  unlawfully  and  wickedly  did  attempt 
and  endeavor  to  break  and  enter,  with  an  intent  the  goods  and 
chattels  of  the  said  W.,  in  the  same  dwelling-house  then  and 
there  being,  feloniously  and  burglariously  to  steal,  take,  and 
carry  away,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  and  against,  etc.     {Conclude  as  in  book  1,  cha.j)ter  3.) 

(387)  Breaking  a  storehouse  with  intent  to  enter  and  steal,  at  common 

law.{m) 

That  T.  H.,  late  of,  etc.,  on,  etc.,  about  the  hour  of  twelve  in 
the  night-time  of  the  same  day,  at,  etc.,  the  storehouse  of  C.  B., 
there  situate,  unlawfully  and  wickedly  did  break,  with  an  intent 
the  same  storehouse  to  enter,  and  the  goods  and  chattels  of  the 
said  C.  B.,  in  the  same  storehouse  then  and  there  being,  then 
and  there  feloniously  to  steal,  take,  and  carry  away,  contrary, 
etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(388)  Being  found  by  night  armed,  with  intent  to  break  into  a 
dwelling-house  and  commit  a  felony  therein. 

That  C.  D,,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  3-ear  of  our  Lord  about  the  hour 

of  eleven  of  the  night  of  the  same  day,  at  B.  aforesaid,  in  the 
county  aforesaid,  was  found  in  the  night-time  as  aforesaid,  then 

(k)  AVarren's  C.  L.  131. 

{/)  Drawn  in  1787,  by  Mr.  Bradford,  then  attorney-general  of  Pennsylvania. 

[m]  lb. 

361 


(388)  OFFENCES    AGAINST    PROPERTY. 

and  there  being  armed  with  a  dangerous  weapon,  to  wit,  a  gun, 
with  intent  then  and  there,  in  the  night-time  as  aforesaid,  to 
break  and  enter  the  dwelling-house  of  one  E.  F.,  there  situate, 
and  then  and  there,  in  the  night-time  as  aforesaid,  in  the  said 
dwelling-house,  feloniously  to  steal,  take,  and  carry  away  the 
goods  and  chattels  and  personal  property  of  the  said  E.  F., 
in  the  said  dwelling-house  then  and  there  being,  against  the 
peace,  etc.  {Conclude  as  in  book  1,  chapter  3.) 
362 


ARSON. 


CHAPTER  III. 

ARSON,  (a) 

(389)  General  frame  of  an  indictment  for  arson  at  common  law. 

(390)  Burning  unfinished  dwelling-house,  under  Mass.  Rev.  Sts.  ch.  126, 

§5. 

(391)  Setting  fire  to  a  building,  whereby  a  dwelling-house  was  burnt  in 

the  night-time.     Mass.  Stat.  1852,  ch.  259,  §  3. 

(392)  Burning  a  dwelling-house  in  the  daytime.     Rev.  Sts.  of  Mass.  ch. 

126,  ^§2. 

(393)  Setting  fire  to  a  building  adjoining  a  dwelling-house  in  the  daytime, 

whereby  a  dwelling-house  was  burnt  in  the  daytime.     Rev.  Sts. 
of  Mass.  ch.  126,  §  2. 

(394)  Burning  a  stable  within  the  curtilage  of  a  dwelling-house.     Rev. 

Sts.  of  Mass.  ch.  12G,  §  3. 

(395)  Burning  a  city  hall  in  the  night-time.     Rev.  Sts.  of  Mass.  ch.  126, 

§3. 

(396)  Burning  a  meeting-house  in  the  daytime.     Rev.  Sts.  of  Mass.  ch. 

126,  §4. 

(397)  Burning  a  vessel  lying  within  the  body  of  the  county.     Rev.  Sts. 

of  Mass.  ch.  125,  §  5. 

(398)  Burning  a  dwelling-house  with  intent  to  injure  an  insurance  com- 

pany.    Rev.  Sts.  of  Mass.  ch.  126,  §  8. 

(399)  Setting  fire  to  stacks  of  hay.     Rev.  Sts.  of  Mass.  ch.  126,  §  6. 

(400)  Burning  a  dwelling-house  in  the  night-time.     Mass.  Stat.  1852,  ch. 

259,  §  3. 

(401)  Burning  a  flouring  mill,  under  Ohio  statute. 

(402)  Burning  a  dwelling-house,  under  Ohio  statute. 

(403)  Burning  a  boat,  under  Ohio  statute. 

(404)  Attempt  to  commit  arson.     Setting  fire  to  a  store,  under  Ohio 

statute. 

(405)  Burning  a  stack  of  hay,  under  Ohio  statute. 

(406)  Burning  a  meeting-house,  under  the  Vermont  statute. 

(407)  Burning  one's  own  house,  with  intent  to  defraud  the  insurers. 

(408)  Burning  a  barrack  of  hay,  under  Pennsylvania  statute. 

(409)  Burning  stable,  under  same. 

(a^  See  generally  Wh.  Cr.  L.  8th  ed.  §  826  et  seq. 

363 


(389)  OFFENCES  AGAINST  PKOPERTY. 

(389)  General  frame  of  an  indictment  for  arson  at  common  law.{h) 
That  A.  B.,  late,  etc.,  a  certain  d\velUng-house(c)  of  one  C.  D.,((^) 

(h)  This  form,  with  a  portion  of  the  notes  to  it,  is  drawn  from  Stark.  C.  P. 
437. 

(c)  "  House"  is  enough  at  common  law.  AVh.  Cr.  L.  8th  ed.  §  840.  Arson 
might  at  common  law  be  committed,  not  only  by  burning  the  dwelling-house,  but 
also  the  outhouses,  which  were  parcel  of  the  dwelling-house  (Wh.  Cr.  L.  §  1667  ; 
1  Hale,  iui);  3  Inst.  67,  69  ;  1  Hawk.  c.  39,  s.  1,  2),  and  it  is  not  necessary  to 
allege  the  burning  of  the  dwelling-house,  but  only  of  the  house  simply.  1  Hale, 
567,  570;  3  Inst.  67;  1  Hawk.  c.  39,  s.  1.  In  Glanfield's  case  (East,  P.  C. 
1034),  it  was  holden  that  out-houses  generally  was  a  sufficient  description  under 
9  Geo.  I.  c.  22,  without  showing  of  what  kind.  But  when  "dwelling-house"  or 
other  term  is  specially  used  in  the  statute,  it  must  be  followed  in  the  indictment. 
State  V.  Sutcliifes,  4'Stroth.  372  ;  ]\IcLane  )'.  State,  4  Ga.  335,  infra. 

{d)  The  allegation  of  ownership  is  material,  for  it  must  appear  that  the  offence 
was  committed  against  the  property  of  another,  and  this  allecjation  must  be  proved. 
See  Wh.  Cr.  L.  8th  ed.  §  841  ;  "Wh.  Cr.  PI.  &  Pr.  §  109  ;  Com.  v.  Wade,  17 
Pick.  395;  Carter  v.  State,  20  Wis.  647;  Pedley's  case,  Leach,  277;  Breeme's 
case,  Leach,  261  ;  Spalding's  case,  Leach,  251  ;  Holmes's  case,  Cro.  Car.  376  ; 
3  Inst.  66.  But  under  the  present  (1880)  English  statutes  the  ownership  need 
not  be  stated,  and  if  stated  need  not  be  proved.  R.  v.  Newboult,  L.  11.  1  C.  C. 
li.  344. 

In  the  case  of  the  Rlckmans  (East,  P.  C.  1034),  the  defend.ants  were  charged 
with  the  arson  of  a  certain  house,  situate  in  the  Parish  of  Ellingham,  etc.,  and 
after  conviction,  all  the  judges  held  that  the  conviction  was  wrong,  because  the 
indictment  did  not  state  the  ownership.  It  appeared  in  that  case  that  the  house 
belonged  to  the  parish,  and  that  they  suffered  one  Thomas  Early  to  live  in  it, 
but  in  whom  the  legal  estate  was  vested  was  unknown  ;  and  the  judges  held,  that 
it  might  have  been  laid  to  be  the  property  of  the  overseers,  or  of  persons  un- 
known. Where  there  is  a  doubt  in  which  of  several  persons  the  property  vests, 
it  should  be  differently  described  in  different  counts,  in  order  to  obviate  any  ob- 
jection on  the  score  of  variance.  If  the  occupation  be  merely  permissive,  as  by 
a  pauper,  of  a  house  belonging  to  the  parish,  the  property  cannot  be  laid  in  him  ; 
vide  supra,  Rickman's  case  ;  and  if  such  pauper  or  mere  servant  burn  the  house 
which  he  inhabits,  even  exclusively,  he  is  guilty  of  arson.  Cowen's  case.  East, 
P.  C.  1027.  Otherwise,  if  the  defendant  has  possession  under  a  lease  for  years 
(Holmes's  case,  Cro.  Car.  376  ;  3  Inst.  66  ;  1  Hale,  568  ;  Breeme's  case.  Leach, 
261  ;  Pedley's  case.  Leach,  2  77),  or  as  mortgagor.  Spalding's  case.  Leach,  258. 
But  it  seems  that  if  the  mere  reversion  be  in  the  defendant,  who  has  not  pos- 
session, he  may  be  guilty  of  the  offence,  by  burning  the  house.  Harris's  case, 
Fost.  113;  East,  P.  C.  1023.  In  Spalding,  Breeme's,  and  Pedley's  cases,  it 
was  held,  that  in  respect  of  the  property  against  which  the  offence  was  com- 
mitted, the  statute  9  Geo.  I.  c.  22  did  not  alter  the  common  law.  The  offence 
is  against  the  possessions,  and  the  house,  etc.,  should  be  described  as  belonging  to 
the  person  who  has  possession  coupled  with  an  interest ;  for  if  the  occupation  be 
merely  permissive,  the  house  ought  not  to  be  described  as  the  occupier's.  See 
Rickmans'  and  Cowen's  cases,  supra.  In  Glanfield's  case  (East,  P.  C.  1034),  it 
apjtt'areil  that  the  out-houses  burnt,  including  the  brew-house,  were  the  property 
of  Blanche  Silk,  widow,  as  also  was  the  dwelling-house  in  which  she  lived  with 
her  son,  J.  S.  ;  that  the  son  also  occupied  the  out-houses,  with  the  exception  of 
the  brew-house,  on  his  own  account,  but  without  any  particular  agreement  with 
his  mother  ;  that  she  repaired  the  dwelling-house  and  out-houses,  and  that  they 
jointly  contributed  to  the  ingredients  for  the  beer,  which  was  brewed  in  the 
brew-house,  and  which  was  used  in  the  family.  Mr.  J.  Heath  held,  that  the 
brew-house  ought  to  be  laid  as  in  their  joint  occupation,  but  the  other  out-houses 

364 


AKSON.  (389) 

there  situate,  feloniously,  -wilfull}',  and  maliciouslj((?)  did  set 
fire  to,  and  the  same  house  then  and  there,  by  such  firing  as 
aforesaid,  feloniously,  wilfully,  and    maliciously  did  burn,(/) 

against,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

f. 

as  in  the  occupation  of  the  son ;  and  upon  the  indictment  so  drawn,  the  prisoner 
was  convicted  and  executed. 

On  an  indictment  for  setting  fire  to  a  barn  in  the  night-time,  whereb}'  a  dwell- 
ing-liouse  was  burned,  charging  the  barn  to  be  the  property  of  G.  and  N.,  it 
appeared  that  G.  was  the  general  owner  of  the  barn,  and  that  part  of  it  was 
in  the  occupancy  of  N.,  and  a  part  of  it  used  for  the  purposes  of  a  stage  com- 
pany, who  had  hired  it  from  G.  by  parol  agreement,  for  no  specified  time,  G. 
himself  being  a  member  and  agent  of  the  company,  and  exercising  no  difierent 
control  over  this  part  of  the  premises  than  he  exercised  over  the  other  way- 
stations  of  the  company.  It  was  held,  that  the  company,  and  not  G.,  was  the 
occupant  of  this  part  of  the  barn  ;  and  that  the  allegation  of  the  indictment,  that 
the  property  was  N.  and  G.'s,  was  not  supported  by  the  proof.  Com.  v.  Wade, 
17  Pick.  395.     See  note  to  infra,  391. 

"  Belonging  to"  is  a  sufficient  averment  of  ownership.  Com.  v.  Hamilton,  15 
Gray,  480.  That  any  kind  of  ownership  will  sustain  the  averment,  see  AYli. 
Cr.  L.  8th  ed.  §  841.  Tlie  mere  possession  of  a  servant,  however,  is  not  such 
ownership.     Wh.  Cr.  L.  8th  ed.  §  83  7. 

A  room  in  a  large  building,  which  room  was  separately  leased  by  the  owner  of 
the  building  to  a  merchant,  who  occupied  it  as  a  store,  and  having  no  direct  com- 
munication with  the  other  parts  of  the  building,  is  properly  laid  in  the  indictment 
for  arson  as  the  property  of  the  lessee.  State  v.  Sandy,  3  Iredell,  570.  See 
Shepherd  v.  People,  19  N.  Y.  537. 

When  there  are  several  tenants  of  a  building  separated  in  distinct  apartments, 
the  burning  must  be  averred  to  be  of  the  property  of  the  tenant  of  tlie  part 
burned.  State  v.  Toole,  29  Conn.  344  ;  State  v.  Tonnery,  9  Iowa,  436  ;  Shep- 
herd V.  People,  19  N.  Y.  537. 

If  a  man,  by  negligently  firing  his  own  house,  endanger  others  which  are  contigu- 
ous, he  may  be  indicted  for  the  misdemeanor,  and  it  is  unnecessary  in  such  case 
to  aver  an  intention  to  burn  the  contiguous  houses.  1  Hale,  568  ;  Cro.  Car.  377  ; 
Scholfield's  case,  Cald.  397.  But  if  the  defendant  set  fire  to  his  own  house  with 
intent  to  defraud  the  insurers,  and  the  house  of  his  neighbor  be  burnt  in  conse- 
quence, the  ofl["ence  will  amount  to  arson.  Per  Grose,  J.,  in  giving  judgment  in 
Probert'scase,  East,  P.  C.  1030.     Wh.  Cr.  L.  8th  ed.  §  843. 

"  And  in  Isaac's  case.  East,  P.  C.  1031,  where  the  offence  committed  under 
such  circumstances  was  laid  as  a  misdemeanor,  Buller,  J.,  directed  an  ac(|uittal 
on  the  ground  that  the  misdemeanor  merged  in  the  felony.  And  if  tlie  defend- 
ant set  fire  to  his  own  house  with  intent  to  burn  his  neighbor's  house,  and  the 
latter  be  burnt  in  consequence,  the  offence  is  as  much  arson  as  if  the  defendant 
had  immediately  set  fire  to  his  neighbor's  house;  therefore  if  A.,  intending  to 
burn  B.'s  house,  set  fire  to  his  own,  and  B.'s  is  burnt  in  consequence,  the  indict- 
ment may  charge  A.  directly  with  the  wilful  aud  malicious  burning  of  B.'s  house." 
1  Hale,  569  ;  East,  P.  C.  1034. 

(e)  "The  words  maliciously  and  wilfully  are  descriptive  of  the  ofl^ence  as 
ousted  of  clergy  by  the  statute  4  and  5  P.  &  JNI.  c.  4  ;  but  they  are  no  part  of  the 
description  under  the  statute  9  Geo.  I.  c.  22  ;  though  under  the  latter  statute  to 
oust  the  offender  of  clergy,  it  must  appear  that  the  act  was  wilful  and  malicious, 
and  it  seems  to  be  safer  so  to  aver  it.  See  1  Hale,  567,  569  ;  3  Inst.  67  ;  East, 
P.  C.  1033,  1021,  Minton's  case."  Starkie's  C.  P.  438.  As  to  the  necessity  of 
these  terms,  see  AVh.  Cr.  L.  8th  ed.  §  839,  and  cases  there  cited. 

(/)  "Burn"  is  essential.  Cochran  v.  State,  6  Gill,  400;  Howell  v.  State, 
5  Grat.  664  ;  Mary  v.  State,  24  Ark.  44.  "  Set  fire  to"  has  been  held  in  Maine 
equivalent  to  "burn."     State  v.  Taylor,  45  Me.  322. 

365 


(390) 


OFFENCES  AGAINST  PROPERTY. 


(390)  Burning  unjinished  dwelling-house,  under  Mass.  Rev.  Sis. 
ch.  126,  §  5.(^) 

That  on,  etc.,  at,  etc.,  about  the  hour  of  twelve  o'clock  in  the 
night-time  of  the  same  day,  a  building  of  one  P.  U.,  of,  etc., 
there  situate,  erected  by  the  said  P.  U.  for  a  dwelling-house,  and 
not  completed  or  inhabited,  feloniously,  wilfully,  and  mali- 
ciously did  set  fire  to,  and  the  same  building,  so  erected  for  a 
dwelling-house,  then  and  there,  by  the  setting  and  kindling  of 
such  fire,  did  unlawfully,  wilfully,  and  maliciously  burn  and 
consume,  against,  etc.,  and  contrary,  etc.  {Conclude  as  in  book 
1,  chapter  3.)(A) 

((/)  Com.  V.  Squire,  1  Met.  258.  This  was  objected  to,  because  there  was  no 
averment  that  the  building  alleged  to  have  been  burnt  was  other  than  tliat  men- 
tioned in  Rev.  Stat.  ch.  126,  §  5.  The  court  held,  however,  that  this  was  not 
necessary,  and  further,  that  there  was  no  insensibility  in  "a  building  erected" 
being  unfinished.  The  word  "feloniously,"  which  was  part  of  the  indictment, 
but  which  is  omitted  in  the  text,  was  rejected  as  surplusage. 

(/()  Com.  V.  Squire,  1  Met.  258.  Under  this  indictment  the  court  said:  "The 
only  remaining  question  to  be  considsred  is,  whether  the  offence  is  so  charged 
in  tliis  indictment,  that  after  a  conviction  or  accpiittal  thereon  it  will  protect  the 
defendant  against  a  second  indictment  lor  the  same  act,  supposing  the  facts  would 
have  warranted  oi-iginally  an  indictment  for  the  otfence  of  the  higher  degree, 
embi'aced  in  the  third  section.  The  difficulty  here  supposed  also  arises  from  not 
stating  in  the  indictment  the  exception  contained  in  the  fifth  section.  It  does 
not  seem  to  us,  that  the  security  of  the  party  against  being  again  charged  for  the 
same  act,  necessarily  requires  the  form  of  tlie  indictment  to  be  such  as  is  sug- 
gested by  the  defendant's  counsel.  Upon  this  point,  also,  some  aid  may  be  de- 
rived from  considering  the  course  of  proceeding  in  prosecutions  for  larcenies. 
Larcenies,  by  our  statute,  are  of  various  grades,  and  are  punished  with  greater 
or  less  severity,  according  to  the  aggravation  of  the  offence  ;  and  these  different 
grades  of  offence  are  punished  under  the  provisions  contained  in  different  and 
distinct  sections  of  the  statute.  But  we  know  very  well  that  in  larcenies  indict- 
ments are  often  found,  charging  the  inferior  grade  of  crimes,  and  omitting  the 
circumstances  of  aggravation,  when  all  the  facts  existing  in  the  case  would,  if 
disclosed  to  the  jury,  bring  the  case  within  the  higher  grade  of  larcenies.  Would 
it  be  a  defence  to  such  indictment,  on  the  trial  before  the  petit  jury,  that  the  de- 
fendant had  committed  the  offence  charged,  but  with  certain  aggravating  circum- 
stances not  charged  ?  It  seems  to  us  not ;  and  that  wlien  the  offence  charged  in 
the  indictment,  and  the  offence  actually  committed,  are  both  merely  larcenies, 
the  greater  offence  includes  the  less,  and  evidence  proving  the  greater  otfence 
will  support  an  indictment  for  the  smaller  offence.  Such  being  the  case,  it  would 
seem  necessaril}-  to  follow,  that  the  conviction  or  acquittal  of  a  party  thus  charged 
with  the  minor  larceny  nuist  be  a  bar  to  a  subsequent  indictment  charging  the 
same  larceny  with  aggravating  circumstances.  The  same  rule  would  seem  pro- 
perly to  apply  to  the  different  gradations  of  offences,  of  maliciously  burning 
buildings,  as  provided  for  in  the  third  and  fifth  sections  of  the  Rev.  Stat.  ch.  126, 
which  is  also  the  same  statute  in  which  there  are  created  four  distinct  grades  of 
larcenies,  with  different  punishments  annexed  to  them.  The  offences  made 
punishable  by  the  tliird  and  fifth  sections  are  both  only  misdemeanors,  and  the 
same  courts  have  jurisdiction  of  each.     There  would  be  but  one  criminal  act  in 

366 


ARSON.  (392) 

(391)  For  setting  Jire  to  a  building,  ivhereby  a  dweU.ivg-house  was 
burnt  in  the  night-time.     31ass.  Stat.  1852,  ch.  259,  §  3. 

That  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  in  the  night-time  of 

said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  a  certain  building,  to  wit,  a  barn,  of  one  E.  F.,(?)  there 
situate,  feloniously,  wilfully,  and  maliciously  did  set  tire  to,  and 
by  the  kindling  of  said  fire,  and  by  the  burning  of  said  build- 
ing, the  dwelling-house  of  the  said  E.  F.,  their  situate,  was  then 
and  there  in  the  night-time  of  said  day,  feloniously,  wilfully, 
and  maliciously  burnt  and  consumed  ;  against  the  peace  of  said 
commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. (7) 

(392)  For  burning  a  dwelling-house  in  the  daytime.     Rev.  Sts.  of 

Blass.  ch.  126,  §  2.{k) 

That  C.  D.,late  of  B.,in  the  county  of  S.,  laborer,  on  the  first 

the  malicious  burning  of  a  building,  whether  th.at  building  alone  was  consumed, 
or  it  occasioned  the  burning  of  any  building  described  in  the  third  section. 
Taking  the  case  under  those  limitations,  -we  think  if  the  government  proceed  by 
an  indictment  for  the  smaller  otl'ence,  and  on  trial  thereof  there  be  a  judgment 
of  conviction  or  acquittal,  such  judgment  would  be  a  legal  bar  to  a  second  in- 
dictment charging  the  same  ofli'ence  with  aggravation.  State  v.  Cooper,  1  Green, 
362.  Upon  the  whole  matter  we  are  therefore  brought  to  the  conclusion,  that 
this  indictment  does  set  forth  the  burning  of  such  a  building  as  is  described  in 
the  statute  ;  that  as  the  facts  stated  in  the  indictment  constitute  a  misdemeanor 
and  not  a  felony,  the  otfence  is  well  charged  in  the  indictment  as  a  misdemeanor  ; 
and  if  the  word  feloniousl)-  be  rejected  as  surplusage,  as  we  think  it  may  be,  that 
the  indictment  is  sufficiently  particular  in  its  tbrm  of  charging  the  oil'ence  to  be 
punished ;  and  finally,  that  a  conviction  or  acquittal  on  this  indictment  would  be 
a  good  bar  to  a  second  indictment  for  the  same  act,  alleging  it  with  the  aggra- 
vating circumstances  described  in  the  third  section  of  the  statute.  The  result, 
therefore  is,  that  the  motion  in  arrest  of  judgment  must  be  overruled,  and  the 
punishment  awarded  against  the  defendant  Avhich  is  prescribed  by  law  in  such 
cases." 

(/)  In  the  case  of  Com.  v.  Wade  (17  Pick.  305,  1835),  which  was  an  indict- 
ment under  stat.  1804,  ch.  131,  it  was  (jueried  whether  it  was  necessary  to  alK-ge 
who  was  the  owner  or  occupant  of  such  building,  or  whether  it  was  the  building 
of  another.  But  if  the  allegation  is  made,  being  descriptive  of  the  olfence,  it 
must  be  strictly  proved.  Two  indictments  charging  the  defendant  with  setting 
fire  to  a  barn,  whereby  a  dwelling-house  was  burnt  in  the  night,  one  alleging  it 
to  be  the  barn  of  A.  and  B.,  the  other  alleging  it  to  be  the  barn  of  A.  and  C, 
were  held  not  to  be  for  the  same  oflence.  Com.  v.  Wade,  17  Pick.  395;  Tr.  & 
H.  Prec.  33. 

(/)  Tr.  &  H.  Prec.  33. 

[k)  If  the  fire  was  set  to  a  building  adjoining  the  dwelling-house,  the  allega- 
tions in  indictments  upon  this  section  will  be  conformable  to  the  facts  in  the  case, 
and  set  forth  as  in  the  preceding  precedent.     Tr.  &  H.  Prec.  33. 

367 


(394)  OFFENCES    AGAINST    PROPERTY. 

day  of  June,  in  the  year  of  our  Lord  in  the  daytime  of 

said  day,  with  force  and  arras,  at  B.  aforesaid,  in  the  county 
aforesaid,  the  dwelling-house  of  one  E.  F.,  there  situate,  feloni- 
ously, wilfully,  and  maliciously  did  burn  and  consume ;  against 
the  peace  of  said  commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided.(^) 

(393)  For  selling  fire  to  a  building  adjoining  a  dwelling-house  in  the 

daytime,  lohereby  a  dwelling-house  was  burnt  in  the  daytime. 
Rev.  Sis.  of  Mass.  ch.  126,  §  2. 

That  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  in  the  daytime  of 

said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  a  certain  building,  to  wit,  a  wood-house,  of  one  A.  B., 
there  situate,  and  adjoining  to  the  dwelling-house  of  the  said  A. 
B.,  there  situate,  feloniously,  wilfully,  and  maliciously  did  set 
fire  to  ;  and  by  the  kindling  of  said  fire  and  the  burning  of  said 
building,  the  said  dwelling-house  of  the  said  A.  B.  was  then 
and  there,  in  the  daytime,  feloniously,  wilfully,  and  maliciously 
burnt  and  consumed;  against  the  peace  of  said  commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. (m) 

(394)  For  burning  a  stable  within  the  curtilage  of  a  dvjelliiig- house. 

Rev.  Sts.  of  3Iass.  ch.  126,  §  3.(n) 

That  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  in  the  night-time  of 

said  da}',  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  feloniously,  wilfully,  and  maliciously  did  set  fire  to  a 
certain  stable  of  one  A.  B.,  there  situate,  and  then  and  there 
being  within  the  curtilage  of  the  dwelling-house  of  the  said  A. 
B.  there  situate,  and  b}'  the  kindling  of  such  fire,  the  aforesaid 
stable  there  situate,  and  then  and  there  being  within  the  curti- 
lage of  said  dwelling-house  as  aforesaid,  was  then  and  there,  in 
the  night-time,  wilfully,  and  maliciously  burnt  and  consumed  ; 

(0  Tr.  &  H.  Prec.  34.  {m)  Tr.  &  H.  Free.  34. 

(?()  Tliis  form  maybe  adopted  for  the  malicious  burning,  in  the  night-time,  of 
any  other  building  mentioned  in  the  latter  part  of  the  third  section  of  the  statute, 
describing  the  building  in  the  identical  woz-ds  of  the  statute.    Tr.  &  H.  Free.  34. 

368 


ARSON.  (397) 

against  the  peace  of  said  commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided.(o) 

(395)  For  burning  a  city  hall  in  the  night-time.     Rev.  Sts.  of  Mass. 

ch.  126,  §3. 

That  C.  D.,  late  of  "W".,  in  the  county  of  W.,  yeoman,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  in  the  night- 

time of  said  day,  with  force  and  arms,  at  W.,  in  the  county  of 
W.,  the  city  hall  of  the  city  of  W.,  in  the  county  of  W.  afore- 
said, there  situate  and  erected  for  public  use,  to  wit,  the  trans- 
action of  the  municipal  business  of  said  city  of  W.,  then  and 
there,  in  the  night-time  of  said  day,  feloniously,  wilfully,  and 
maliciously  did  burn  and  consume ;  against  the  peace  of  said 
commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided.(^) 

(396)  For  burning  a  meeting-house  in  the  daytime.     Rev.  Sts.  of 
Mass.  ch.  126,  §  4. 

That  C.  D.,  late  of  F.,  in  the  county  of  M.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  in  the  daytime 

of  said  day,  with  force  and  arms,  at  F.  aforesaid,  in  the  county 
aforesaid,  a  certain  meeting-house,  there  situate,  of  the  property 
of  the  First  Baptist  Society  in  Framingham,  in  said  county,  and 
erected  for  public  use,  to  wit,  for  the  public  worship  of  God,(5') 
then  and  there,  in  the  daytime,  feloniously,  wilfully,  and  mali- 
ciously did  burn  and  consume  ;  against  the  peace  of  said  com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  ease 
made  and  provided. (r) 

(397)  For  burning  a  vessel  lying  within  the  body  of  the  county.    Rev. 
Sts.  of  Mass.  ch.  125,  §  5. 

That  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  in  the  night-time 
of  said  day,  with  force  and  arms,  at  B.  aforesaid,  in  the  county 
aforesaid,  a  certain  vessel,  called  the  "  Rattler,"  the  property  of 

(o)  Tr.  &  H.  Free.  34.  (p)   Tr.  &.  H.  Free.  34. 

(r/)  If  any  other  building  erected  for  public  use,  as  town-houses,  court-houses, 
academies,  etc.,  the  public  use  for  which  it  is  designed  must  be  set  forth.  Tr.  & 
H.  Free.  35. 

(r)  Tr.  &  H.  Free.  35. 

VOL.  I.— 24  369 


(399)  OFFENCES    AGAINST    PROPERTY. 

one  A.  B.  and  of  E.  F.,  G.  H.,  etc.,  then  and  there  lying  and 
being  at  B.,  within  the  body  of  the  said  county  of  S.,  feloni- 
ously, wilfully,  and  maliciously  did  burn  and  consume ;  against 
the  peace  of  said  commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

(398)  For  burning  a  dwelling-house  with  intent  to  injure  an 
insurance  company.    Rev.  Sts.  of  Mass.  ch.  126,  §  8. 

That  C.  D,,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms,  at  B.,  in  the  county  of  S,,  feloniously,  wilfully,  and  mali- 
ciously did  burn  and  consume  a  certain  dwelling-house,  there 
situate,  of  the  property  of  one  J.  ]Sr.,(?'^)  which  dwelling-house 
aforesaid  was  then,  to  wit,  at  the  time  of  committing  the  felony 
aforesaid,  insured  against  loss  and  damage  by  fire  by  the  Massa- 
chusetts Mutual  Fire  Insurance  Company,  the  same  then  and 
there  being  an  insurance  company  legally  established,  with  in- 
tent thereby  then  and  there  to  injure  said  insurance  company; 
against  the  peace  of  said  commonwealth,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided.(s) 

(399)  For  setting  jire  to  stacks  of  hay.    Rev.  Sts.  of  31ass.  ch.  126, 

§6." 

That  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid, 

in  the  county  aforesaid,  feloniously ,(;!)  wilfully,  and  maliciously 
did  burn  and  consume  a  certain  stack  of  hay,  of  the  property  of 
one  J.  N.,  then  and  there  being;  against  the  peace  of  said  com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.(w) 

(r')  This  need  not  be  stated.     R.  v.  Newboidt,  L.  R.  1  C.  C.  R.  349. 

(s)  Tr.  &  H.  Free.  .37. 

(0  Tlie  odence  of  burning  stacks  of  hay,  as  provided  against  by  IMass.  Stat. 
1804,  §§  3,  4,  was  not  a  felony.  Com.  v.  Macomber,  3  Mass.  254.  It  was  made 
a  felony  by  Stat.  1852,  ch.  37,  i.  In  Maryland  the  offence  is  not  a  felony,  either 
by  common  law  or  by  the  acts  of  1809  and  1845.  Black  v.  Tlie  State,  2  Mary- 
land, 376  ;  Tr.  &  H.  Free.  37. 

(m)  Tr.  &  H.  Free.  37. 

370 


ARSON.  (403) 

(400)  For  burning  a  dwelling-house  in  the  night-time.     Mass.  Stat. 
1852,  ch.  259,  §  3. 

The  jurors  for  the  commonwealth  of  Massachusetts,  upon  their 
oath  present,  that  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer, 
on  the  first  day  of  June,  in  the  year  of  our  Lord  in  the 

night-time  of  said  day,  with  force  and  arms,  at  B.  aforesaid,  in 
the  county  aforesaid,  the  dwelling-house  of  one  A.  B.,  there 
situate,  feloniously,  wilfully,  and  maliciously  did  burn  and  con- 
sume; against  the  peace  of  said  commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided.(y) 

(401)  Arson.     Burning  a  flouring  mill ^  under  Ohio  statute. 

That  A.  B.,  on  the  twentieth  day  of  January,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  forty-three,  in  the 
county  of  Cuyahoga  aforesaid,  wilfully,  maliciousl}^,  and  feloni- 
ously did  burn  and  cause  to  be  burned,  by  setting  fire  thereto, 
a  certain  mill  there  situate,  to  wit,  a  flouring  mill,  the  property 
of  one  M.  N.,  and  of  the  value  of  three  thousand  dollars,(z^) 
contrary,  etc. 

(402)  Arson.     Burning  a  dwelling -house  ^  under  Ohio  statute. 

That  A.  B.,  on  the  first  day  of  April,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  fifty-two,  in  the  county  of 
Hamilton  aforesaid,  did  wilfully,  maliciously,  and  feloniously 
set  fire  to  and  burn  one  dwelling-house,  then  and  tliere  being, 
the  property  of  one  M.  N.,  of  the  value  of  fifty  dollars  and 
more,(:r)  contrary,  etc. 

(403)  Arson.     Burning  a  boat,  under  Ohio  statute. 

That  A.  B.  and  C.  D.,  on  the  thirteenth  day  of  May,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-three, 
in  the  county  of  Hamilton  aforesaid,  did  wilfully,  maliciously, 
and  feloniously  set  fire  to  and  burn  one  boat,  then  and  there 
being,  of  the  property  of  John  Patton,  of  the  value  of  fifty 
dollars  and  more,{y)  contrary,  etc. 

(v)  Tr,  &  11.  Prec.  32.  (tv)  Warren's  C.  L.  139. 

Ix)  Warren's  C.  L.  137.  (i/)  Warren's  C.  L.  137. 

371 


(406)  OFFENCES    AGAINST    PROPERTY. 

(404)  Attempt  to  commit  arson.     Setting  fire  to  a  store,  under  Ohio 

statute. 

That  A.  B.  and  C.  D.,  on  the  twenty-fourth  day  of  June,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  forty-six, 
in  the  county  of  Logan  aforesaid,  the  storehouse  of  one  M  N., 
of  the  value  of  fifty  dollars,  there  situate,  feloniously,  wilfully, 
unlawfully,  and  maliciously  did  set  fire  to,  with  intent  then  and 
there  the  said  storehouse  feloniously,  unlawfully,  wilfully,  and 
maliciously  to  burn  and  destroy ,(z)  contrary,  etc. 

(405)  Burning  a  stack  of  hag,  under  Ohio  statute. 

That  A.  B.  and  C.  D.,  on  the  nineteenth  day  of  October,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty-one, 
in  the  county  of  Cuyahoga  aforesaid,  unlawfully,  wilfully,  and 
maliciously  did  set  fire  to,  and  thereby  did  then  and  there  burn 
and  destroy  a  certain  stack  of  hay,  of  the  value  of  twenty  dol- 
lars, the  property  of  M.  N.,  there  situate  and  being.(a) 

(406)  Burning  a  meeting-house,  under  the  Vermont  statute.{b) 

That  J.  R.,  of,  etc.,  on,  etc.,  at,  etc.,  a  certain  meeting-house, 
then  and  there  situated,  belonging  to  the  First  Calvinistic 
Congregational  Society  in  Burlington  aforesaid,  erected  for 
public  use,  to  wit,  for  the  public  worship  of  Almighty  God, 
did  then  and   there  wilfully,  maliciously,  and  feloniously  set 

(z)  Warren's  0.  L.  140;   Ohio  v.  Davis,  15  Ohio,  272. 

(a)  Warren's  C.  L.  140. 

(b)  State  V.  Roe,  12  Vt.  93.  Collamer,  J.  :  "The  indictment  charped  that 
the  church  or  meeting-house  belonged  to  '  the  First  Calvinistic  Congregational 
Society  in  Burlington.'  The  proof  of  this  allegation  consisted  in  the  paper  pre- 
sented, and  parol  proof,  that,  from  1810,  the  society  has  been  known  by  the  name 
of  the  First  Calvinistic  Congregational  Society  in  the  town  of  Burlington ;  and 
that  they  built,  and  have  never  occupied  the  house.  Was  this  sufficient?  The 
existence  of  a  society  or  corporation,  de  facto,  is  sufficient,  and  that  is  always 
shown  by  parol.  Even  had  it  been  shown  that,  in  point  of  fact,  the  society  never 
were  organized  and  never  were  a  corporation,  it  was  of  no  importance.  The 
burning  of  the  meeting-house  would  be  arson  within  our  statute,  though  it  did 
not  belong  to  a  corporation. 

"  But,  it  is  said,  there  is  a  variance  in  the  name.  They  take  no  name  in  the 
writing.  They  might  have  many  names  by  reputation,  and  they  are  not,  in  the 
indictment,  attempted  to  be  described  by  name,  but  by  general  character  or  tenet ; 
and  the  words,  as  to  location,  in  the  town  of  Burlington,  and  in  Burlington,  are 
in  substance  the  same.  This  whole  allegation  and  its  materiality,  will  come  again 
under  consideration  on  the  motion  in  arrest." 

372 


ARSON.  (409) 

fire  to  and  burn,  contrary,  etc.,  and  against,  etc.     {Conclude  as 
in  book  1,  chapter  3.) 

(407)  For  burning  one's  own  house^  with  intent  to  defraud  the 

insurer  s.{c) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  feloniously,  wilfully,  ma- 
liciously, and  unlawfully  did  set  fire  to  a  certain  house,  being  in 
the  possession  of  him  the  said  A.  B.,  with  intent  thereby  to 
injure  and  defraud  the  {here  state  the  corporation  defrauded)  (then 
and  there  being  a  body  corporate),  against,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(408)  Burning  a  barrack  of  hay^  under  Pennsylvania  statute.{d) 

That  H.  C,  late,  etc.,  on,  etc.,  at,  etc.,  feloniously,  unlawfully, 
wilfully,  and  maliciously  did  set  fire  to  a  certain  barrack  of  hay 
of  A.  B.,  there  situate,  with  intent  to  destroy  the  same,  to  the 
great  damage  of  the  said  A.  B.,  contrary,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  Z.) 

(409)  Burning  a  stable,  under  same. 

That  the  said  H.  C,  at  the  county  aforesaid,  on  the  day  and 
year  aforesaid,  and  within  the  jurisdiction  of  this  court,  with 

(c)  This  form  -was  prepared  under  the  English  statute.  That  the  offence  is  not 
indictable  at  common  law,  see  Wh.  Cr.  L.  8th  ed.  §§  830,  843. 

[d)  This  form,  with  the  necessary  alterations,  is  based  on  Chapman  v.  Com.,  5 
Whart.  427.  Per  Curiam :  "The  word  '  maliciously'  in  the  first  count,  may  pass 
as  an  equivalent  for  the  world  '  wilfully  ;'  but  the  words  '  barrack,  rick,  or  stack 
of  hay,  grain,  or  bark,'  as  much  import  a  barrack  of  hay  or  grain,  as  they  do  a 
rick  or  stack  of  hay  or  grain.  They  were  used  elliptically  in  the  context,  to  avoid 
repetition.  The  statute  is  an  amplification  of  the  act  of  17G7,  under  a  mitigated 
punishment ;  and  it  is  to  be  remarked  that  it  was  not  indictable  in  that  act,  though 
it  is  so  now,  to  burn  a  barn,  'unless  it  had  hay  or  corn  therein.'  It  is  not  credi- 
ble, therefore,  that  the  legislature  did  not  formerly  extend  as  much  protection  to 
a  barn  as  they  subsequently  intended  to  extend  to  a  barrack,  which,  in  Pennsyl- 
vania, is  an  erection  of  upright  posts  supporting  a  sliding  roof,  usually  of  thatch  ; 
for  of  all  the  buildings  on  a  farm,  it  is  the  cheapest,  and  that  whicli,  independ- 
ently of  the  property  housed  by  it,  offers  the  least  incitement  to  malicious  mis- 
chief. It  is  not  generally,  if  at  all,  used  by  the  tanner  to  cover  his  bark  ;  but 
containing  the  material,  its  contents  would  be  within  the  words  of  the  statute, 
and  the  protection  intended  to  be  given  by  it. 

"The  second  count  is  for  feloniously  burning  a  stable,  which  is  undoubtedly  a 
subject  of  the  statutory  offence,  independent  of  its  contents ;  but  as  it  does  not 
conclude  against  the  form  of  the  statute,  and  there  is  no  such  felony  in  tlie  com- 
mon law,  there  is  no  count  in  the  indictment  on  which  tlie  judgment  can  be 
rested."     The  form  in  the  text  is  modified  to  meet  the  opinion  of  the  court. 

373 


(409)  OFFENCES  AGAINST  PROPERTY. 

force  and  arms,  feloniously,  unlawfully,  wilfully,  and  maliciously 
did  set  fire  to  and  burn  a  certain  stable  of  the  aforesaid  A.  B., 
there  situate,  with  intent  to  destroy  the  same,  to  the  evil  example 
of  all  others  in  like  case  offending,  contrary,  etc.,  and  against, 
etc.  {Conclude  as  in  book  1,  chapter  3.) 
374 


ROBBERY.  (-11^0) 


CHAPTER  IV. 

ROBBERY.(a) 

(410)  General  frame  of  indictment  at  common  law. 

(410a)  Robbery  in  New  Hampshire  of  U.  S.  national  currency. 

(411)  Robbery,  the  prisoner  being  armed  with  a  dangerous  weapon.     Mass. 

Rev.  Sts.  ch.  125,  §  13. 

(412)  Robbery,  the  prisoner  being  armed  with  a  dangerous  weapon,    and 

striking  and  wounding  the  person  robbed.     Rev.  Sts.  of  Mass.  ch. 
125,  §  13. 

(413)  Robbery,  not  being  armed.     Rev.  Sts.  of  Mass.  ch.  125,  §  15. 

(414)  Attempting  to  extort  money  by  threatening  to  accuse   another  of  a 

crime.     Rev.  Sts.  of  Mass.  ch.  125,  §  17. 

(410)  General  frame  of  indictment  at  common  law.(b) 

That  A.  B.,  etc.,  in  the  highway  there,  in  and  upon  E.  F.  there 
being,((?)  feloniously(^)  did  make  an  assault,  and  hira  the  said 
E.  F.  in  bodily  fear(e)  and  danger  of  his  life,  in  the  highway 
aforesaid,  then  and  there  feloniously  did  put,  and  one  gold  watch, 

(a)   See  Wh.  Cr.  L.  8th  ed.  §§  847  et  seq. 
(h)  For  this  form,  see  Stark.  C.  P.  441. 

(c)  "Near  the  highway"  has  been  sustained  as  a  substitute  for  "in  the  high- 
way." State  V.  Anthony,  7  Ired.  234  ;  State  v.  AVilson,  67  N.  C.  456.  But  the 
allegation  "in"  is  not  sustained  by  proof  of  "near."  State  v.  Cowan,  7  Ired. 
239. 

(d)  It  is  essential  to  aver  that  the  assault  was  feloniously  made.  Stark.  C.  P. 
99.     See  Wh.  Cr.  L.  8th  ed.  §  857. 

(e)  It  is  necessary  to  aver,  that  the  property  was  taken  with  violence  from  the 
person,  and  against  the  will  of  the  party.  Post.  128  ;  1  Hale,  534  ;  Leach,  229. 
"  The  allegation  that  the  party  was  put  in  fear  is  of  modern  introduction  ;  and  in 
Donally's  case  (Leach,  229),  it  was  observed  by  the  judges,  that  no  technical 
description  was  necessary,  provided  it  appeared  on  the  whole  that  tlie  ofiFence  had 
been  committed  with  violence,  and  against  the  will  of  the  party.  And  in  Smith's 
case  (East,  P.  C.  783),  the  prisoner  was  charged  with  assaulting  the  prosecutor 
with  force  and  arms,  and  putting  him  in  corporal  fear,  and  taking  a  sum  of  money 
from  his  person,  against  his  will ;  it  was  objected  tliat  the  taking  ouglit  to  have 
been  alleged  to  have  been  done  violently,  but  all  the  judges  agreed,  that  a  rob- 
bery was  sufficiently  described,  and  that  Lord  Hale  (1  Hale,  534)  was  inaccurate 
in  his  expression."  Stark.  C.  P.  442.  See  Wh  Cr.  L.  8th  ed.  §§  847  et  seq. 
"Against  his  will"  is  not  necessary  in  California.    People  v.  Shaler,  28  Cal.  490. 

375 


(411)  OFFENCES    AGAINST    PROPERTY. 

of  the  value  of  (insert  goods  taken,  as  in  larceny),  of  the 

goods  and  chattels  of  the  said  E.  F.,  from  the  person  and  against 
the  will(/)  of  the  said  E.  F,,  in  the  highway  aforesaid,  then  and 
there  feloniously ,  and  violently  and  forcibly  ,(^)  did  seize,  take,  and 
carry  away  (with  intent  from  the  person  of  the  said  E.  F.  the 
said  goods  and  chattels  of  the  said  E.  F.  to  rob  and  steal),(/t) 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(410a)  Robbery  of  U.  S.  national  currency. 

That  J.  G.  and  W.  M.,  both  of,  etc.,  on,  etc.,  at,  etc.,  with 
force  and  arms,  in  and  upon  one  S.  L.,  of,  etc.,  feloniously  did 
make  an  assault,  and  him  the  said  S.  L.  in  bodily  fear  and  danger 
of  his  life  then  and  there  feloniously  did  put,  and  two  bank  bills 
for  the  payment  of  two  dollars  each,  and  of  the  value  of  two 
dollars  each,  of  the  national  currency  of  the  United  States,  and 
two  United  States  treasury  notes  of  the  value  of  two  dollars 
each,  of  the  goods,  chattels,  and  moneys  of  him,  the  said  S.  L., 
from  the  person  and  against  the  will  of  him  the  said  S.  L.,  then 
and  there  feloniously  and  by  violence  and  putting  in  fear  did 
steal,  take,  and  carry  away,  contrary,  etc.(/)  {Conclude  as  in 
hook  1,  chapter  3.) 

(411)  Robbery,  the  prisoner  being  armed  with  a  dangerous  weapon. 
Mass.  Rev.  Sts.  cA.  125,  §  13.(J) 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  with  force  and  arms,  at  B.  aforesaid,  in  the 

county  aforesaid,  in  and  upon  one  J.  K.  feloniously  did  make  an 
assault,  and  the  said  J.  N.  in  bodily  fear  and  danger  of  his  life 
then  and  there  feloniously  did  put,  and  one  gold  watch,  of  the 
value  of  two  hundred  dollars,(/c)  of  the  goods  and  chattels  of  the 
said  J.  IT.,  from  the  person  and  against  the  will  of  the  said  J.  I!^., 
then  and  there  feloniously,  and  by  force  and  violence,  did  rob, 

(/)  This  is  necessary.     Wh.  Cr.  PI.  &  Pr.  §  267 ;  Wh.  Cr.  L.  8th  ed.  §  857. 

{g)  As  to  importance  of  tliese  allegations,  see  Collins  v.  People,  39  111.  233  ; 
Anderson  v.  State,  28  Ind.  22. 

{}))  This  is  necessary  in  Ohio.     Matthews  v.  State,  4  Ohio  St.  538. 

{i)  The  above  indictment  was  sustained  in  State  v.  Gorham,  55  N.  H.  152. 

(,/)  Tr.  &  H.  Prec.  461  ;   Com.  v.  Martin,  17  Mass.  359. 

(i)  The  same  rule  as  to  description  of  property  prevails  as  in  larceny.  See 
infra,  form  415.  If  the  larceny  be  well  pleaded,  the  defendant  may  be  convicted 
of  it  in  case  the  charge  of  burglary  fails.     Wh.  Cr.  L.  8th  ed.  §  858. 

376 


ROBBERY.  (413) 

steal,  take,  and  carry  away,  the  said  C.  D.  being  then  and  there 
armed  with  a  dangerous  weapon,  to  wit,  a  pistol,  with  intent,  if 
then  and  there  resisted  by  the  said  J.  N.,  him,  the  said  J.  'N., 
then  and  there  to  kill ;  against,  etc.  [Conclude  as  in  book  1,  chap- 
ter 3.) 

(412)  Robbery^  the  'prisoner  being  armed  with  a  dangerous  weapon^ 
and  striking  and  wounding  the  person  robbed.  On  the  latter 
clause  of  the  thirteenth  section  of  the  Rev.  Sts.  of  Mass.  ch. 
125,  §  13.(0 

That  A.  B.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  with  force  and  arras, 

at  B.  aforesaid,  in  the  county  aforesaid,  in  and  upon  one  J.  N., 
feloniously  did  make  an  assault,  and  the  said  J.  N.  in  bodily  fear 
and  danger  of  his  life,  then  and  there,  feloniously  did  put,  and 
sundry  pieces  of  silver  coin,  current  within  this  commonwealth 
by  the  laws  and  usages  thereof,  amounting  together  to  the  sura 
of  twelve  dollars,  and  of  the  value  of  twelve  dollars,  of  the 
moneys  and  property  of  the  said  J.  N.,  from  the  person  and 
against  the  will  of  the  said  J.  iN".,  then  and  there  feloniously  and 
by  force  and  violence  did  rob,  steal,  take,  and  carry  away;  and 
that  the  said  A.  B.  was  then  and  there  armed  with  a  certain 
dangerous  weapon,  to  wit,  a  pistol,  and  being  then  and  there  so 
armed  as  aforesaid,  the  said  A.  B.,  with  the  dangerous  weapon 
aforesaid,  the  said  J.  N.,  in  and  upon  the  face  and  head  of  the 
said  J.  N.,  then  and  there  feloniously  did  strike  and  wound ; 
against,  etc.,  and  contrary,  etc. 

(413)  Robbery^  not  being  armed.  Rev,  Sts.  of  Mass.  ch.  125,  §  15. (m) 

That  C.  D.,  late  of,  etc.,  laborer,  on  the  first  day  of  June,  in 
the  year  of  our  Lord  with  force  and  arras,  at  B.  aforesaid, 

in  the  county  aforesaid,  in  and  upon  one  J.  N.  feloniously  did 
make  an  assault,  and  the  said  J.  iT.  then  and  there  feloniously 
did  put  in  fear,  and  one  gold  watch,  of  the  value  of  one  hun- 
dred dollars,  of  the  goods  and  chattels  of  the  said  J.  N.,  from 
the  person  and  against  the  will  of  the  said  J.  N.,  then  and  there 

(0  Tr.  &  H.  Prec.  462. 

(m)  Tr.  &  H.  Prec.  463,  where  reference  is  made  to  Com.  v.  Humphries,   7 
Mass.  242;   Com.  v.  Cliflbrd,  8  Cushing,  215,  217. 

377 


(414)  OFFENCES    AGAINST    PROPERTY. 

feloniously,  and  by  force  and  violence,  did  rob,  steal,  take,  and 
carry  away;  against,  etc.,  and  contrary,  etc. 

(414)  Attempting  to  extort  money  hy  threatening  to  accuse  another  of 
a  crime.     Rev.  Sis.  of  Mass.  ch.  125,  §  17.(/i) 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  with  force  and  arms,  at  B.  aforesaid,  in  the 

county  aforesaid,  unlawfully  and  maliciously  did  threaten  one 
J.  N.,  in  a  certain  conversation  with  the  said  C.  D.  then  and 
there  had  of  and  concerning  the  said  J.  N.,  to  accuse  the  said 
J.  N.  of  having  (here  describe  the  accusation)^  with  the  intent  by 
80  doing  thereby  then  and  there  to  extort  from  the  said  J.  N.  a 
certain  sum  of  monej^,  to  wit,  the  sum  of  five  hundred  dollars ; 
against,  etc.,  and  contrary,  etc. 

(?i)  Tr.  &  H.  Prec.  463.     (For  other  cases  of  this  class,  see  infra,  972  et  seq.) 

378 


LARCENY. 


CHAPTER  Y. 
LARCENY,  (a) 

(415)  General  frame  of  indictment  at  common  law. 

(416)  Stealing  the  property  of  different  persons. 

(417)  Larceny  at  a  navy  yard  of  the  United  States. 

(418)  Larceny  on  the  high  seas. 

(419)  Larceny  on  the  high  seas.     Another  form. 

(420)  Larceny  in  an  American  ship  at  the  Bahama  Islands. 

(421)  Second  count.     Receiving,  etc. 

(422)  Larceny.     Form  in  use  in  New  York. 
(422a)   Same  in  Maine. 

(423)  Same  in  Pennsylvania. 

(424)  Second  count.     Receiving  stolen  goods. 

(425)  Same  in  New  Jersey. 

(426)  Same  in  South  Carolina. 

(427)  Same  in  Michigan. 
(427a)   Same  in  Indiana. 

(4275)  Bank  note  in  Massachusetts. 

(428)  Bank  note  in  North  Carolina. 

(429)  Bank  note  in  Pennsylvania. 

(430)  Bank  note  in  Connecticut. 

(431)  Bank  note  in  Tennessee. 
(431a)  Bank  note  in  Iowa. 

(4316)   Stealing  notes  of  unknown  banks. 

(432)  Larceny  in  dwelling-house  in  daytime.    Mass.  Rev.  Sts.  ch.  126,  §  14. 
(432a)  Larceny  in  building  in  Massachusetts. 

(433)  Breaking  and  entering  a  vessel  in  the  night-time,  and  committing  a 

larceny  therein,  under  Mass.  Rev.  Sts.  ch.  126,  §  11. 

(434)  Breaking  and  entering  a  shop  in  the  night,  and  committing  a  larceny 

therein,  under  Mass.  Rev.  Sts.  ch.  126,  §  11. 

(435)  Larceny  by  the  cashier  of  a  bank.     Mass.  Stat.  1846,  ch.  171,  §  1. 

(436)  Breaking  and  entering  a  stable  in  the  night-time,  and  committing  a 

larceny  therein.     Mass.  Stat.  1851,  ch.  156,  §  1. 

(437)  Breaking  and  entering  a  shop  in  the  night-time,  adjoining  to  a  dwell- 

ing-house, with  intent  to  commit  the  crime  of  larceny,  and  actually 
stealing  therein.     Mass.  Stat.  1839,  ch.  31. 

(a)  For  this  offence  generally,  see  Wh.  Cr.  L.  8th  ed.  §  862  et  scq. 

379 


(415)  OFFENCES  AGAINST  PROPERTY. 

(438)  Entering  a  dwelling-house  in  the  night-time  without  breaking,  some 

persons  being  therein,  and  being  put  in  fear.     Mass.  Rev.  Sts.  ch. 
126,  §  12. 

(439)  Breaking  and  entering  a  dwelling-house  in  the  daytime,  the  owner 

being  therein,  and  being  put  in  fear.    Mass.  Rev.  Sts.  ch.  126,  §  12. 

(440)  Breaking  and  entering  a  city  hall,  and  stealing  therein  in  the  night- 

time.    Mass.  Rev.  Sts.  ch.  126,  §  14. 

(441)  Stealing  in  a  building  that  is  on  fire.     Mass.  Rev.  Sts.  ch.  126. 

(442)  Larceny  from  the  person.     Rev.  Sts.  of  Mass.  ch.  126,  §  16. 

(443)  Larceny  of  real  property.     Mass.  Stat.  1851,  ch.  151. 

(443a)   Stealing  and  receiving  goods  from  ware-house  under  Mass.  statute. 

(444)  Larceny  and  embezzlement  of  public  property,  on  the  statute  of  the 

United  States  of  the  30th  April,  1790,  §  26. 

(445)  Stealing,  destroying,  or  concealing  wills  under  English  statute. 
(445a)   Stealing  documents  of  title  under  English  statute. 

(445Z»)    Stealing  valuable  securities  under  English  statute. 

(445c)   Stealing  lead,  etc.,  under  English  statute. 

(445c?)  Stealing  or  cutting  bills  under  English  statute.     (See  infra,  483.) 

(415)  General  frame  of  indictment  at  common  law. 

That  A.  B.,  at,  etc.,  on,  etc.,(6)  one  hat,(tf)  of  the  value  of  one 
dollar,(<^/)  of  the  goods  and  chattels  of  C.  D.,(e)  then  and  there 
being  found,  feloniously  did  steal,  take,  and  carry  away.(/) 
{Conclude  as  in  book  1,  chapter  3.) 

(h)  As  to  name,  time,  and  place,  see  notes  to  form  2,  supra,  pp.  9  et  seq. 

(c)  Pleading  of  articles  stolen  —  Documents  —  In  statutory  larcenies  it  is 
ordinarily  sufficient  to  give  the  statutory  designation,  and  it  is  enough  if  this  is 
sufficiently  accurate  to  identify  the  document.  See  Bonnell  v.  State,  64  Ind. 
498.  But  if  the  pleader  undertakes  to  give  the  words  of  the  document,  then  a 
variance  as  to  such  words  is  at  common  law  fatal.  See  cases  cited  Wh.  Cr.  PI. 
&  Pr.  U  182  et  seq.  R.  v.  Craven,  R.  &  R.  14  ;  U.  S.  v.  Keen,  1  McLean,  429  ; 
U.  S.  V.  Lancaster,  2  McLean,  431.  In  an  indictment  for  falsely  pretending  a  paper 
to  be  a  valid  promissory  note,  it  is  sufficient  to  designate  it,  setting  it  forth  not  being 
necessary.  R,  v.  Coulson,  T.  &  M.  332  ;  1  Den.  C.  C.  592  ;  4  Cox  C.  C.  332  ; 
Com.  V.  Coe,  115  Mass.  481.  "  Purporting  to  be"  is  not  a  necessaiy  qualification 
of  the  designation.  R.  v.  Birch,  1  Leach,  79  ;  2  W.  Bl.  790;  State  v.  Gardi- 
ner, 1  Ired.  27  ;   Wh.  Cr.  L.  8th  ed.  §  738. 

United  States  Courts. — Money,  and  bank  notes,  and  coin,  are  "personal 
goods,"  within  the  meaning  of  the  sixteenth  section  of  the  ci-iraes  act  of  1790, 
c.  36,  respecting  stealing  and  purloining  on  the  high  seas.  U.  S.  v.  Moulton,  5 
Mason,  53  7. 

An  order  on  the  cashier  of  the  Bank  of  the  United  States  is  evidence  in  sup- 
port of  an  indictment  for  forging  an  order  on  the  cashier  of  the  corporation  of 
the  Bank  of  the  United  States.  U.  S.  v.  Hinman,  1  Baldw.  292.  It  is  not 
necessary  to  give  a  particular  description  of  a  letter  charged  to  have  been  secreted 
and  embezzled  by  a  postmaster,  nor  to  describe  the  bank  notes,  particularly, 
inclosed  in  the  letter.  But  if  either  the  letter  or  the  notes  be  described  in  the 
indictment,  they  must  be  proved  as  laid.  U.  S.  v.  Lancaster,  2  McLean,  431. 
It  is  enough  to  show  that  the  letter  came  into  the  hands  of  the  postmaster,  in  the 

380 


LARCENY — DESCRIPTION   OF   PROPERTY.  (415) 

words  of  the  statute,  without  showing  where  it  was  mailed,  and  on  what  route  it 
was  conveyed.     (Ibid.) 

Massachusetts. — An  indictment  under  the  act  of  March  15,  1785,  for  larceny, 

alleging  that  the  defendant  stole  "  a  bank  note  of  the  value  of ,  of  the  goods 

and  chattels  of ,"  is  sufficient,  without  a  more  particular  description  of  the 

note.     Com.  v.  Richards,  1  Mass.  337.       "  Divers  bank  bills,  amounting  in  the 

whole  to ,  etc.,  and  of  the  value  of,  etc.,  of  the  goods  and  chattels,"  etc., 

has  been  held  sufficient.  Larned  v.  Com.,  12  Met.  240;  Com.  v.  Sawtelle,  11 
Cush.  142.  And  so  of  "certain  moneys,  to  wit,  divers  promissory  notes,  current 
as  money  in  said  commonwealth."  Com.  v.  Ashton,  125  Mass.  384.  See,  for 
other  cases,  infra.,  pp.  383  et  seq. ;  form  4275. 

"  Sundry  bank  bills  and  sundry  promissory  notes  issued  by  the  United  States, 
commonly  called  legal  tender  notes,  all  said  bills  and  notes  together  amounting 
to  ninety  dollars,  and  of  the  value  of  ninety  dollars,"  is  not  an  adequate  descrip- 
tion of  United  States  treasury  notes.  Com.  v.  Cahill,  12  Allen,  540.  See 
Hamblett  «.  State,  18  N.  H.  384;  infra,  p.  384. 

"For  the  payment  of  money,"  need  not  be  averred  of  a  promissory  note. 
Com.  V.  Brettun,  100  Mass.  206. 

Connecticut. — Where  an  information  for  theft  described  the  property  alleged  to 
be  stolen  as  "  thirteen  bills  against  the  Hartford  Bank,  each  for  the  payment  and 
of  the  value  of  ten  dollars,  issued  by  such  bank,  being  an  incorporated  bank,  in 
this  state,"  it  was  held  that  this  description  was  sufficiently  certain.  Salisbury 
V.  State,  6  Conn.  101. 

New  York. — A  contract  not  under  seal  is  incorrectly  described  as  a  bond,  and 
the  error  is  fatal.     People  v.  AViley,  3  Hill,  194. 

Where  the  indictment  stated  that  the  defendant  stole  "  four  promissory  notes, 
commonly  called  bank  notes,  given  for  the  sum  of  fifty  dollars  each,  by  the  Me- 
chanics' Bank  in  the  city  of  New  York,  which  were  due  and  unpaid,  of  the  value 
of  two  hundred  dollars,  the  goods  and  chattels  of  P.  C,  then  and  there  found," 
etc.,  it  was  held  a  sufficient  description,  without  saying  they  were  the  property 
of  P.  C.  The  word  "chattels"  denotes  property  and  ownership.  People  v. 
Holbrook,  13  Johns.  90. 

Under  the  New  York  statute,  which  makes  the  stealing  of  "personal  property" 
larceny,  an  indictment  for  grand  larceny,  in  stealing  bank  notes,  alleged  that  the 
defendant  feloniously  stole,  took,  and  carried  away  ten  promissory  notes,  called 
bank  notes,  issued  by  the  Chicopee  Bank  for  tlie  payment  of  divers  sums  of 
money,  amounting  in  the  whole  to  the  sum  of  fifty  dollars,  and  of  the  value  of 
fifty  dollars ;  ten  promissory  notes,  called  bank  notes,  issued  by  the  Agawam 
Bank,  etc.,  of  the  goods,  chattels,  and  property  of  B.  M.  It  was  held,  on 
motion  in  arrest  of  judgment,  that  the  indictment  was  sufficient.  It  was  held, 
also,  tliat  it  was  of  no  consequence  whether  the  banks  were  organized  within  the 
bounds  and  under  the  laws  of  New  York,  or  were  banks  of  other  states  or  coun- 
tries, so  far  as  the  allegations  in  the  indictment  were  concerned;  the  name  of  the 
banks  being  mentioned  by  way  of  description  of  the  property  stolen.  People  v. 
Jackson,  8  Barb.  637.      See  infra,  p.  383. 

In  an  indictment  for  stealing  bank  notes,  it  is  sufficient  to  describe  them,  in  the 
same  manner  as  other  things  which  have  an  intrinsic  value,  by  any  description 
applicable  to  them  as  chattels.     (Ibid.) 

Pennsylvania  — Under  the  act  of  15th  April,  1790,  an  indictment  for  stealing 
bank  notes  must  lay  them  as  promissory  notes  for  the  payment  of  money  (Com. 
V.  Boyer,  1  Binn.  201)  ;  and,  therefore,  an  indictment  for  stealing  a  "ten  dollar 
note  of  the  president,  directors,  and  company  of  tiie  Bank  of  the  United  States," 
is  bad.  But  "one  promissory  note,"  etc.,  is  now  under  the  criminal  code  suffi- 
ciently descriptive.     Com.  V.  Henry,  2  Brewster,  506  ;  Com.  v.  Byerly,  Ibid.  568. 

An  indictment  charging  that  the  defendant  feloniously  did  steal  and  carry  away 
"sundry  promissory  notes  for  the  payment  of  money,  of  the  value  of  eighty 
dollars,  of  the  goods  and  chattels  of  the  said  A.  M.,"  was  held  under  the  act  of 
1810  too  vague  and  uncertain  ;  the  notes,  it  was  said,  should  be  more  particularly 

381 


(415) 


OFFENCES    AGAINST    PROPERTY. 


described,  and  It  should  be  set  forth  that  the  money  was  unpaid  on  them  ;  Stew- 
art V.  Com.,  4  S.  &  R.  194  ;  though  in  a  subsequent  case  it  was  held  that  where 
there  was  enough  in  the  description  of  the  note  to  show  it  was  unpaid,  an  aver- 
ment to  that  effect  is  unnecessary.  Com.  v.  M'Laughlin,  4  Rawle,  464.  Though 
see  Rev.  Act  of  1860,  hereafter  cited.     Com.  v.  Byerly,  2  Brewster,  568. 

An  indictment  for  stealing  three  promissory  notes  for  the  payment  of  money, 
commonly  called  bank  notes,  "  on  the  Bank  of  the  United  States,"  was,  iii  an- 
other case,  held  to  be  good.  M'Laughlin  v.  Com.,  4  Rawle,  464.  It  is  not  neces- 
sary to  state  that  the  bank  was  duly  incorporated.     (Ibid.) 

By  the  revised  act  of  1860,  pamph..435,  it  is  sufficient  if  the  document  be 
averred  by  the  name  by  which  it  is  generally  known. 

New  Jersey. — "  Bank  notes,"  pleaded  as  such,  are  not  "  goods  and  chattels" 
under  the  statute.     State  v.  Calvin,  2  Zab.  2U7. 

Manjlund. — In  an  indictment  founded  upon  the  act  of  1809,  c.  138,  for  steal- 
ing a  bank  note,  it  is  sufficient  to  describe  the  note  as  a  bank  note  for  the  pay- 
ment of,  etc.,  and  of  the  value  of,  etc.  Nothing  more  is  rec^uired  than  to  charge 
the  offence  in  the  language  of  the  act.     State  v.  Carsel,  2  Har.  &  G.  407. 

North  Carolina. — In  an  indictment  for  stealing  a  bank  note,  a  description  of 
the  note  in  the  following  words,  "one  twenty  dollar  banknote  on  the  State  Bank 
of  North  Carolina,  of  the  value  of  twenty  dollars,"  is  good.  State  v.  Rout,  3 
Hawks,  618;   infra,  form  428. 

An  indictment  charged  the  defendant  with  feloniously  stealing,  etc.,  "  a  cer- 
tain bank  note,  issued  by  the  Bank  of  Newbern."  The  note  offered  in  evidence 
upon  the  trial  purported  to  be  issued  by  "the  president  and  directors  of  the 
Bank  of  Newbern,"  wliereupon  the  defendant  was  acquitted,  because  the  evi- 
dence did  not  support  the  charge.  He  was  then  indicted  for  feloniously  stealing, 
etc.,  a  certain  note  "issued  by  the  president  and  directors  of  the  Bank  of  New- 
bern." To  this  indictment  he  pleaded  "former  acquittal,"  and  in  support  of 
the  plea  produced  the  record  of  the  first  indictment  and  the  proceedings  thereon. 
It  was  lield  that  the  recoi'd  produced  did  not  support  the  plea,  and  the  plea  was 
overruled.     State  v.  Williamson,  3  Murph.  216;  infra,  form  428. 

"  One  promissory  note  issued  by  the  treasury  department  of  the  United  States 
for  one  dollar"  is  a  sufficient  description.  State  v.  Fulford,  1  Phill.  (N.  C.)  L. 
563  ;  infra,  p.  384. 

Alabama. — In  an  indictment  charging  the  larceny  of  promissory  notes  omission 
to  charge  the  value  of  the  notes  is  a  material  defect.  Wilson  v.  State,  1  Port. 
118  ;  and  see  Sallie  v.  State,  39  Ala.  691. 

Mississippi. — The  statute  of  this  State  makes  obligations,  bonds,  bills  obliga- 
tory, or  bills  of  exchange,  promissory  notes  for  the  payment  of  money,  or  notes 
for  tlie  payment  of  any  specific  property,  lottery  tickets,  bills  of  credit,  subjects 
of  robbery  and  larceny.  Damewood  v.  State,  1  How.  Miss.  262  ;  Greeson  v. 
State,  5  How.  Miss.  33.  It  is  not  sufficient  that  the  indictment  describes  a  bank 
note  as  a  promissory  note  for  tlie  payment  of  money  purporting  to  be  a  bank  note. 
Damewood  v.  State,  1  How.  Miss.  262.     See  infra,  p.  383. 

National  notes  are  not  correctly  described  as  "  $150  in  United  States  currency." 
Merrill  v.  State,  45  Miss.  651.     See  more  fully  as  to  national  notes,  infra,  p.  384. 

Missouri. — It  is  not  necessary  to  allege  that  the  bank  is  chartered.  McDonald 
V.  State,  8  Mo.  283. 

Tennessee. — Tlie  place  of  payment  in  a  bank  note  charged  to  have  been  stolen 
need  not  be  stated  as  descriptive  of  the  note  in  the  indictment ;  but  if  it  is  stated, 
it  then  becomes  material  as  descriptive  of  the  offence  charged,  and  the  note  pro- 
duced in  evidence  must  correspond  with  the  description  given  in  the  indictment, 
or  it  will  be  a  fatal  variance.     Hite  v.  State,  9  Yerger,  357. 

Ohio. — An  indictment  for  stealing  bank  bills  is  not  sustained  by  proof  that  the 
prisoner  stole  the  orders  of  the  Ohio  Railroad  Company.  Grummond  v.  State, 
Wilcox,  510.  Indictments  for  having  in  possession  counterfeit  blank  bank  notes 
must  specifically  describe  them.     M'Slillau  v.  State,  5  Ohio,  269. 

382 


LARCENY — DESCRIPTION   OF   PROPERTY.  (415) 

Designation. — The  pleader,  in  selecting  a  designation  for  a  document  which 
is  the  subject  of  adjudication,  must  keep  in  mind  the  following  definitions  : — 

^^  Receipt." — "Settled,  Sam  Hughes,"  at  the  foot  of  a  bill  of  parcels,  was 
held  to  support  an  allegation  of  a  receipt,  without  any  explanatory  averment. 
R.  V.  Martin,  1  Moody  C.  C.  483  ;  7  C.  &  P.  549  ;  R.  v.  Boardman,  2  Moody  & 
R.  147  ;  R.  V.  Rogers,  9  C.  &  P.  41.  Anything  that  admits  payment,  and  is 
signed,  is  enough  to  bring  the  instrument  within  the  term  "receipt."  Testick's 
case,  2  East  P.  C.  925  ;  R.  v.  Houseman,  8  C.  &  P.  180  ;  R.  v.  Moody,  Leigh 
&  Cave,  173  :  but  see,  under  peculiar  Massachusetts  statute.  Com.  v.  Lawless,  101 
Mass.  32.  But  the  term  "  receipt"  is  not  applicable  if  the  fact  of  payment  either 
does  not  appear  on  the  document  or  is  not  averred.  R.  v.  Goldstein,  R.  &  R. 
C.  C.  473  ;  R.  V.  Harvey,  R.  R.  227;  R.  v.  West,  2  C.  &  K.  49G  ;  1  Den.  C. 
C.  258  ;  R.  V.  Pries,  6  Cox  C.  C.  165  ;  Clark  v.  State,  8  Ohio  St.  (N.  S.)  630  ; 
State  V.  Humphreys,  10  Humph.  442  ;  Wh.  Cr.  L.  8th  ed.  §  740.  Nor  can  it 
be  applied  when  the  name  of  the  receiptor  is  wanting,  or  is  obscui-e  and  is  not 
helped  out  by  averments.  R.  v.  Hunter,  2  Leach,  C.  C.  624  ;  2  East  P.  C.  977  ; 
R.  V.  Boardman,  2  Mood.  &  R.  147  ;  Wh.  Cr.  L.  8th  ed.  §  740.  And  such  ex- 
planatory matter  must  not  only  be  averred  but  proved.  See  Wh.  Cr.  PI.  &  Pr. 
5J§  192-3  ;  Wh.  Cr.  L.  8th  ed.  §§  728  et  seq.,  740. 

"  Acquittance"  is  a  term  used  in  some  statutes  as  cumulative  with  receipt,  and 
all  receipts  may  be  regarded  as  acquittances.  R.  v.  Atkinson,  2  Moody,  215. 
But  all  acquittances  are  not  receipts,  as  an  aquittance  may  consist  in  an  instru- 
ment simply  discharging  another  from  a  particular  duty.  Com.  v.  i^add,  15 
Mass.  526. 

A  certificate  by  a  society  that  a  member  has  paid  up  all  his  dues,  and  is  hono- 
rably discharged,  is,  under  the  English  statute,  neither  an  accpiittance  nor  a 
receipt.  R.  v.  French,  L.  R.  1  C.  C.  R.  217.  Nor  is  a  scrip  certificate  in  a 
railway  company.  Clark  v.  Newsam,  1  Exch.  131  ;  R.  v.  West,  1  Den.  C.  C. 
258  ;  2  Cox  C.  C.  437. 

'■'■Bill  of  Exchange." — If  the  drawer's,  payee's,  or  drawee's  name  be  want- 
ing or  be  unintelligible  ;  if  there  be  any  conditions  of  payment ;  if  tlie  amount  be 
uncertain,  or  if  it  be  not  expressed  in  money,  the  document  will  not  sustain  the 
technical  description.  R.  v.  Cm-ry,  2  Moody,  218;  R.  v.  Birkutt,  R.  &  R. 
251  ;  R.  V.  Smith,  2  Mood.  295  ;  R.  v.  Wicks,  R.  &  R.  149  ;  R.  v.  Hart,  6  C. 
&  P.  106  ;  R.  V.  Butterwick,  2  Mood.  &  R.  196  ;  R.  v.  Randall,  R.  &  R.  195  ; 
R.  V.  Bartlett,  2  Moody  &  R.  362;  R.  v.  Mopsey,  11  Cox  C.  C.  143;  People  v. 
Howell,  4  Johns.  296.  See  Wh.  Cr.  L.  8th  ed.  §§  739  et  seq.  Whether 
drawee's  name  can  be  dispensed  with,  if  place  of  payment  be  given,  see  R.  v. 
Smith,  supra;  R.  v.  Snelling,  Dears.  219;  22  Eng.  L.  &  E.  597.  Where  there 
is  an  obscurity  in  the  "acceptance"  (R.  v.  Cooke,  8  C.  &  P.  582;  R.  v. 
Rogers,  8  C.  &  P.  629),  or  the  indorsement  (R.  v.   Arscott,  6   C.  &  P.  408)  ; 

as  where  the  document  was  made  payable  to or  order  (R.   v.   Randall, 

R.  &  R.  195)  ;  there  is  a  variance.  That  a  bill  drawn  by  a  person  in  his  own 
favor,  and  by  him  accepted  and  indorsed,  is  a  "  bill  of  exchange,"  is  asserted  in 
Massachusetts  (Com.  v.  Butterick,  100  Mass.  12),  tliough  in  England  the  incli- 
nation of  authority  is  the  otlier  way.  R.  v.  Smith,  supra.  It  is  not  necessary, 
in  New  York,  to  aver  that  there  was  money  due  on  the  bill.  Phelj)s  v.  People, 
13  N.  y.    Supreme  Ct.  401  ;  S.  C,  72  N.  Y.  334,  372. 

"  Promissory  Note,"  has  been  held  to  include  bank  notes,  where  the  statute 
does  not  specifically  cover  "bank  notes."  Com.  (<*.  Paulus,  11  Gray,  305; 
Com.  V.  Ashton,  125  Mass.  384  ;  People  i'.  Jackson,  8  Barb.  63  7  ;  Com.  v.  Boyer, 
1  Binn.  201  ;  Hobbs  v.  State,  9  Mo.  855  ;  though  see  Culp  v.  State,  1  Porter,  33. 
It  seems  to  be  otherwise  when  the  statute  does  not  use  the  term  as  a  nomen  gen- 
eralissimurn.  Spangler  v.  Com.,  3  Binn.  533  ;  Damewood  v.  State,  1  How. 
Miss.  262.  Nor  is  it  necessary,  in  prosecutions  for  larceny,  that  tlie  note  be 
locally  negotiable.  Story  on  Bills,  §  60;  Sibley  v.  Phelps,  6*  Cusii.  172;  People 
?;.  Bradley,  4  Park.  C.  R.  245.  A  note  which  is  not  negotiable  in  one  country 
may  be  negotiable  in  another.     Wh.  Contl.  of  L.  §  447.    A  more  due-bill  will  sup- 

a83 


(415)  OFFENCES    AGAINST    PROPERTY. 

port  the  designation.  People  v.  Finch,  5  Johns.  237.  It  was  at  one  time  ruled 
in  Pennsylvania,  that  if  a  note  be  not  averred  or  implied  to  be  still  due  and  un- 
paid, it  is  not  a  promissory  note.  Com.  v.  M'Laughlin,  4  Rawle,  464;  Stewart 
V.  Com.,  4  S.  &  R.  194.  This,  however,  is  in  Pennsylvania  by  statute  no 
longer  necessary ;  stipra,  p.  382.  In  any  view  it  is  enough  if,  on  the  face  of 
the  paper  when  it  is  set  out,  it  appears  still  outstanding.  Ibid.  ;  Com.  v. 
Richards,  1  Mass.  337;  Phelps  v.  People,  72  N.  Y.  334;  State  v.  Rout,  3 
Hawks,  618.  See  Com.  v.  Brettun,  100  Mass.  206.  And  though  a  document 
signed  by  M.  and  payable  to  his  order  is  not  a  promissory  note  until  indorsed,  an 
allecation  that  D.,  in  forging  the  indorsement,  forged  the  indorsement  of  a 
promissory  note,  may  be  sustained.     Com.  v.  Dallinger,  118  Mass.  439. 

^'^  Bank  Note." — In  England,  in  an  indictment  under  the  2  Geo.  2,  c.  25,  the 
document  stolen  must  be  expressly  averred  to  be  a  bank  note,  or  a  bill  of  exchange, 
or  some  other  of  the  securities  specified.  Craven's  case,  2  East  P.  C.  601.  See 
Com.  V.  Richards,  1  Mass.  337  ;  Larned  w.  Com.,  12  Met.  240  ;  Com.  v.  Sawtelle, 
11  Cush.  142  ;  People  v.  Holbrook,  13  Johns.  10  ;  State  v.  AVilliam,  3  Murphey, 
216,  and  other  cases  cited  Wh.  Cr.  Ev.  §  116a.  A  note  of  the  bank  of  England 
is  suliiciently  described  as  a  bank  note  of  the  governor  and  company  of  the  Bank 
of  England,  for  the  payment  of  one  pound,  etc.,  the  property  of  the  prosecutor; 
the  said  sum  of  one  pound  thereby  secured,  then  being  due  and  unsatisfied  to  the 
proprietor.  Starkie's  C.  P.  217.  In  Massachusetts,  a  bank  note  is  sufficiently 
described  as  a  "  bank  bill"  in  an  indictment  on  Rev.  Sts.  c.  126,  §  17,  for  steal- 
ing it.  Eastman  v.  Com.,  4  Gray,  416  ;  Com.  v.  Stebbins,  8  Gray,  493.  "  Bank 
note"  and  "bank  bill"  are  synonymous.  State  u.  Hays,  21  Ind.  176.  And  an 
indictment  charging  the  larceny  of  "  sundry  bank  bills  of  some  banks  respectively, 
to  the  jurors  unknown,  of  the  value  of,"  etc.,  is  good.  Com.  ;;.  Grimes,  10  Gray, 
470.     See  State  v.  Hoppe,  39  Iowa,  468;  supra,  p.  381. 

An  unnecessarily  minute  description  of  a  bank  note  may  be  fatal ;  as  where  an 
indictment  for  stealing  a  bank  note  alleged  it  to  be  "signed  for  the  governor  and 
company  of  the  Bank  of  England,  by  J.  Booth,"  and  no  evidence  of  Booth's 
signature  was  given,  the  judges  held  the  prisoner  entitled  to  an  acquittal.  R.  v. 
Craven,  Russ.  &  Ry.  14;  Wh.  Cr.  Ev.  §  116. 

"  Bank  bill  or  note"  refers  exclusively  to  bank  paper,  and  does  not  include  an 
ordinary  promissory  note.  State  v.  Stimson,  4  Zab.  9.  It  includes,  however, 
notes  redeemed  by  the  bank,  and  in  its  agents'  hands.  Com.  v.  Rand,  7  Met. 
475. 

Whether  it  is  necessary  to  aver  the  bank  to  have  been  incorporated  is  elsewhere 
considered.     AVh.  Cr.  PI.  &  Pr.  §  110. 

Under  the  Maine  statute  it  is  not  necessary  to  aver  either  genuineness  or  the 
name  of  the  bank.     State  v.  Stevens,  62  Me.  284. 

I'reasury  Notes  and  U.  S.  Currency. — The  following  description  has  been 
held  sufficient:  "Two  five  dollar  United  States  treasury  notes,  issued  by  the 
treasury  department  of  the  United  States  government,  for  the  payment  of  five 
dollars  each  and  of  the  value  of  five  dollars."  State  c.  Thomason,  71  N.  C.  146. 
"  One  promissory  note  issued  by  the  treasury  department  of  the  United  States," 
has  been  also  held  sufficient.  State  v.  Fulford,  1  Phill.  N.  C.  L.  563  ;  and  see 
Sallie  V.  State,  39  Ala.  691.  "  Four  promissory  notes  of  the  United  States 
for  the  payment  of  money"  is  good  (Hummel  v.  State,  17  Ohio  St.  628)  ;  and 
so  of  "  fifty  dollars  in  national  currency  of  the  United  States,  the  exact  denomi- 
nation of  which  is  to  the  grand  jury  unknown"  (Dull  v.  Com.,  25  Grat.  965 ;  Du 
Bois  V.  State,  50  Ala.  139  ;  Grant  v.  State,  55  Ala.  201  ;  but  see  Merrill  v.  State, 
45  Miss.  651  ;  Martinez  v.  State,  41  Tex.  164  ;  Ridgewayw.  State,  41  Tex.  231  ; 

see  Wh.  Cr.  PI.  &  Pr.  §  176)  ;  and  so  of  " dollars  in  paper  currency  of  the 

United  States'of  America."  State  v.  Carro,  26  La.  An.  377  ;  State  v.  Shon- 
hausen,  26  La.  An.  421.  In  Massachusetts,  it  is  held  that  "  three  bonds  of  the 
United  States,  each  of  the  value  of  ten  thousand  dollars,"  is  a  good  description 
(Com.  V.  White,  123  Mass.  430)  ;  and  so  of  "  divers  promissory  notes  current  as 
money  in  said  commonwealth,  of  the  amount  and  value  of  eighty-seven  dollars, 

384 


LARCENY — DESCRIPTION   OF   PROPERTY.  (415) 

a  more  particular  description  of -which  is  to  the  jurors  unknown"  (Com.  v.  Green, 
122  Mass.  333)  ;  nor  is  it  a  variance  that  the  notes  were  "three  tens,  eleven 
fives,  and  one  two,"  and  might  have  been  so  known  by  the  grand  jury.  Ibid. 
See  Com.  r.  Hussey,  111  Mass.  432.  "Divers  promissory  notes,  ol"  the  amount 
and  of  the  value  in  all  of  five  thousand  dollars,  a  more  particular  description  of 
which  is  to  the  jurors  unknown,"  is  sufllcient,  and  is  sustained  by  proof  of  bank 
notes.  Com.  v.  Butts,  124  Mass.  449.  "  Divers  promissory  notes  payable  to 
the  bearer  on  demand,  current  as  money  in  the  said  commonwealth,  of  the 
amount  and  of  the  value  of  eighty  dollars,  a  more  particular  description  of  which 
is  to  the  jurors  unknown,"  is  also  good,  unless  it  should  appear  that  the  grand  jury 
had  at  the  time  of  the  finding  a  full  description  of  the  notes.  Com.  v.  Gallagher, 
12G  Mass.  54  ;  S.  P.,  Com.  v.  Ashton,  125  Mass.  354  ;  supra,  p.  381 ;  infra,  p.  390. 

An  indictment  on  the  Gen.  Sts.  c.  160,  §  24,  charging  the  robbery  of  several 
' '  promissory  notes  then  and  there  of  the  currency  current  in  said  conmionwealth," 
is  sustained  by  proof  that  the  notes  stolen  were  either  bank  bills  or  treasury  notes. 
The  words  "of  the  currency  current  in  this  commonwealth"  are  equivalent  to 
"  current  as  money  in  this  commonwealth."     Com.  v.  Griffiths,  12G  Mass.  252. 

But  "  sundry  bank  bills,"  "commonly  called  legal  tenders,"  has  been  held  in- 
sufficient. Com.  V.  Cahill,  12  Allen,  540.  See  Hamblett  v.  State,  18  N.  H. 
384. 

"Divers  United  States  treasury  notes,  and  national  bank  notes  and  fractional 
currency  notes,  amounting  in  the  whole  to  §158.00,  and  of  the  A'alue  of 
$158.00,"  is  sufficient.  State  c.  Hurst,  11  AV.  Ya.  54.  "Certain  money  and 
bank  bills,"  to  wit,  "six  dollars  and  eighty-five  cents  in  bank  bills,  usually 
called  United  States  legal  tender  notes,  as  follows  :  one  bill  of  the  denomination 
of  five  dollars,  one  bill  of  the  value  of  one  dollar,  and  eighty-five  cents  in  cur- 
rency, usually  known  and  called  postal  currency,"  was  held  in  New  York  in 
1870  not  to  be  an  averment  sufficiently  accurate  to  sustain  a  conviction  for  steal- 
ing national  bank  notes  and  United  States  fractional  currency.  People  v,  Jones, 
5  Lansing,  340.  It  was  conceded  that  to  charge  the  notes  simply  as  "cuiTcnt 
bank  bills  of  the  value  of  — — "  etc.,  would  have  been  enough.  But  it  was  in- 
sisted that  when  surplus  descriptive  matter,  varying  the  character  of  the  thing 
stolen,  is  introduced,  this  must  be  proved.  People  v.  Loop,  3  Parker  C.  R. 
559  ;  People  v.  Quinlan,  6  Parker  C.  R.  9.  See  Hickey  v.  State,  23  Ind.  21, 
334,  340  ;  State  v.  Evans,  15  Rich.  (S.  C.)  31  ;  State  r.'Cason,  20  La.  An.  48  ; 
Com.  )'.  Butterick,  100  Mass.  1  ;  McEntee  v.  State,  24  Wis.  43. 

'•'■Money." — Under  the  general  term  "  money,"  bank  notes,  promissory  notes, 
or  treasury  warrants  cannot  be  included,  unless  they  be  made  a  legal  tender.  R. 
V.  Major,  2  East  P.  C.  118;  R.  c.  Hill,  R.  &  R.  190;  State  r.  Foster,  3  McC. 
442;  Williams  v.  State,  12  Sm.  &  M.  58;  State  v.  Jim,  3  Murph.  3;  McAuley 
V.  State,  7  Yercf.  526  ;  Com.  v.  Swinney,  1  Va.  Cas.  146;  Johnson  v.  State,  11 
Ohio  St.  324  ;  Colson  v.  State,  7  Black.  590;  Hale  v.  State,  8  Tex.  171.  In 
England,  however,  it  has  been  held  that  bank  notes,  when  a  legal  tender,  are 
properly  described  in  an  indictment  for  larceny  as  "money,"  although  at  the 
time  they  were  stolen  they  were  not  in  circulation,  but  were  in  the  hands  of  the 
bankers  themselves.  R.  v.  West,  7  Cox  C.  C.  183;  Dears.  &  B.  109;  R.  v. 
Godfrey,  Dears.  &  B.  426.     Whatever  is  currency  is  money. 

"  Goods  and  Chattels." — Under  "goods  and  chattels,"  it  has  been  ruled  that 
bank  notes  cannot  be  included.  Com.  v.  Eastman,  2  Gray,  76  ;  State  v.  Calvin, 
2  Zabr.  207  ;  Com.  v.  Swinney,  1  Va.  Cas.  146  ;  State  v.  Jim,  3  Murphey,  37  ; 
contra,  People  v.  Kent,  1  Dougl.  (Mich.)  42.  As  to  English  practice  see  li.  v. 
Mead,  4  C.  &  P.  535;  R.  v.  Dean,  2  Leach,  693;  R.  v.  Crone,  Jebb,  47; 
Anon.,  1  Crawf.  &  Dix  C.  C.  152.  In  R.  v.  Mead,  halves  of  bank  notes  sent  by 
mail  were  held  "goods  and  chattels."  A  railway  ticket  has  been  said  to  be  a 
chattel.  R.  v.  Boulton,  1  Den.  C.  C.  508;  2  C.  &  K.  917.  But  see  R.  v. 
Kilham,  L.  R.  1  C.  C.  264;  Steph.  Dig.  C.  L.  art.  288,  doubting.  And  wlien- 
ever,  in  statutes,  the  terms  "goods  and  chattels"  are  used  as  nomen  fieneraiis- 
simum,  and  are  not  connected  with  the  terms  "money"  or  "property,"  they  should 

VOL.  I.— 25  385 


(415)  OFFENCES    AGAINST    PROPERTY. 

have  this  general  construction.  But  the  term,  when  used  distinctively  in  a  statute, 
has  been  held  not  to  include  bonds  and  mortgages  (R.  v.  Powell,  14  Eng.  Law  & 
Eq.  575  ;  2  Den.  C.  C.  403),  nor  coin.  R.";;.  Radley,  3  Cox  C.  C.  4G0  ;  2  C. 
&  K.  977;  1  Den.  C.  C.  450;  R.  v.  Davison,  1  Leach,  241  ;  though  see  U.  S. 
V.  IVJoulton,  5  Mason,  537  ;  Hall  v.  State,  3  Oh.  St.  575.  But  be  this  as  it  may, 
it  seems  that  in  such  case  the  words  "goods  and  chattels"  may  be  discharged  as 
surplusage,  and  a  conviction  sustained  without  them  when  property  is  elsewhere 
charged.  Ibid.;  R.  v.  jNIorris,  1  Leach  C.  C.  109;  Com.  v.  Eastman,  2  Gray, 
76;  S.  C,  4  Gray,  416;  Com.  v.  Bennett,  118  Mass.  452.  Wh.  Cr.  PI.  &  Pr. 
§§  158,  183.  And  the  tendency  is  to  embrace  in  the  term  all  mocahles,  e.r/., 
poultry  and  other  live  stock  (2 'East  P.  C.  748  ;  R.  v.  Whitney,  1  ]\Ioody,  3)  ; 
and  grain  in  a  stable  (State  v.  Brooks,  4  Conn.  446).  Indeed,  it  would  seem 
as  if  whatever  is  subject  to  common  law  larcenj'  should  be  embraced  in  the  term 
unless  restricted  by  statute.     State  v.  Bonwell,  2  Harring.  529. 

"  Warrant,  Order,  or  Request  for  Monetj  or  Goods."  —  "Warrant"  includes 
any  document  calling  for  the  payment  of  money  or  delivery  of  goods,  on  which, 
if  genuine,  a  prvndjacie  case  of  recovery  could  be  made.  R.  v.  Vivian,  1  C.  & 
K.  719;  1  Den.  C.  C.  35;  R.  v.  Dawson,  2  Den.  C.  C.  75  ;  5  Cox  C.  C.  220; 
1  Eng.  Law  &  Eq.  589.  A  "dividend"  warrant  falls  under  this  head.  R.  v. 
Autey,  Dears.  &  B.  294  ;  7  Cox  C.  C.  329  ;  and  so  does  a  letter  of  credit.  R. 
V.  Raake,  2  Moody,  (i6  ;  and  so,  distinctively,  of  any  letters  authorizing  but 
not  commanding  a  particular  act;  and  this  constitutes  the  chief  differentia  be- 
tween Avarrant  and  order.  Perhaps  the  only  cases,  therefore,  to  which  "order" 
does  not  apply,  but  "warrant"  does,  are  those  in  which  there  is  a  discretionary 
power  reserved  to  the  drawee.  An  authority  to  a  correspondent  to  advance 
funds  if  he  thinks  best,  is  a  "warrant,"  but  not  an  "order."  See  R.  v.  Wil- 
liams, 2  C.  &  K.  51.  But  waiTants  include  also  (as  has  been  seen)  instruments 
where  the  drawer  assumes  mandatory  power;  e.  g.,  besides  the  cases  just  men- 
tioned, post-office  drafts  (R.  c.  Gilchrist,  sujjra),  and  bills  of  exchange.  R.  v. 
WiUoughby,  2  East  P.  C.  581. 

"  Order"  implies,  beyond  this,  a  mandatory  power  in  the  drawer.  R.  v. 
Williams,  2  C.  &  K.  51  ;  iNIcGuire  v.  State,  37  Ala.  161.  A  prima  facie  case 
is  enough  ;  and  though  the  drawer  has  neither  money  nor  goods  in  the  drawee's 
hands,  and  there  is  no  privity  between  them,  yet,  as  the  instrument  could  be 
none  the  less  on  its  face  the  basis  of  a  suit,  it  does  not,  from  such  latent  defects, 
lose  the  qualities  of  a  forgeable  order.  See  R.  v.  Carte,  1  C.  &  K.  741  ;  People 
V.  Way,  10  Cal.  336  ;  R.  v.  Lockett,  1  Leach,  110.  But  &  prima  facie  drawer 
and  drawee  are  necessary  ;  and  the  drawer  must  occupy,  on  the  face  of  the  in- 
strument, the  attitude  of  "ordering,"  and  the  drawee  the  relation  of  being 
"ordered."  See  cases  just  cited,  and  R.  v.  Curry,  2  Moody,  218;  C.  &  M. 
652;  R.  V.  CuUen,  5  C.  &  P.  116;  R.  v  Richards,  R.  &  R.  193;  People  u. 
Farrington,  14  Johns.  348.  Y.et  there  may  be  cases  where  a  drawee's  name  can 
be  dispensed  with.  An  order  on  the  keeper  of  a  prison,  for  instance,  or  on  the 
sheriff  of  a  county,  is  no  less  an  order  because  the  drawee' s  name  is  not  given  ; 
and  so  we  can  conceive  of  an  order  by  a  factory  treasurer  on  the  factory  store- 
keeper, to  which  the  same  remark  would  applv.  As  sustaining  this  may  be  cited, 
R.  V.  Gilchrist,  2  Moody,  233;  R.  v.  Snelliiig,  Dears.  219;  22  Eng.' L.  &  Eq. 
597;  Com.  v.  Butterick',  100  Mass.  12;  Noakes  v.  People,  25  N.  Y  380.  As 
will  presently  be  seen,  defectiveness,  when  the  document  is  set  forth,  may  be 
helped  out  by  averment.  If,  either  on  its  face,  or  when  thus  explained,  the  docu- 
ment involves  a  call  by  one  party  on  another  for  something  valuable,  it  is  an 
order.  Com.  r.  Fisher,  17  Mass.  46;  Com.  v.  Butterick,  100  Mass.  12;  State 
V.  Cooper,  5  Day,  250 ;  People  v.  Shaw,  5  Johns.  R.  236  ;  People  v.  Farrington, 
14  Johns.  R.  348;  Evans  v.  State,  8  Ohio  St.  196;  Hoskins  v.  State,  11  Ga. 
92;  INIcGuire  v.  State,  37  Ala.  361.  See  Jones  v.  State,  50  Ala.  161.  The 
following  was  held  to  be  an  "order  for  the  payment  of  money,"  although  the 
party  addressed  was  not  indebted  to  the  supposed  drawer,  or  bound  to  comply  : 
"  Mr.  Campbell,  please  give  John  Kepper  $10,  Frank  Netf."     Com.  v.  Kepper, 

386 


LARCENY — DESCRIPTION  OF    PROPERTY.  (^^1^) 

114  Mass.  278.  Even  in  Engianfl  a  note  from  a  merchant,  askinji  that  the  bearer 
should  be  permitted  to  test  wine  in  the  London  docks,  is  an  "  order"  for  tlie  de- 
livery of  goods,  R.  c.  lUidge,  2  C.  &  K.  871  ;  T.  &  M.  127 ;  3  Cox  C.  C.  552. 
^^  Request"  is  wider  still,  and  inclu<les  a  mere  invitation,  and  is  teciinieally 
proper  in  cases  whei-e  the  party  supposed  to  draw  is  without  authority  to  draw. 
R.  V.  James,  8  C.  &  P.  292;  'R.  c.  Thomas,  2  Moody,  16;  R.  v.  Newton,  2 
Moody,  59 ;  R.  v.  Walters,  C.  &  INI.  588  ;  R.  r.  White,  9  C.  &  P.  282 ;  R.  v. 
Evans,  5  C.  &  P.  553;  R.  v.  Kay,  L.  R.  I  C.  C.  257.  It  is  not  necessary  that 
a  drawer  should  be  specified.  R.  v.  Pulbrook,  9  C.  &  P.  37.  Checks,  drafts,  and 
bills  of  exchange  may  be  regarded  as  either  "orders"  or  "requests."  R.  v. 
Willoughby,  2  East  P.  C.  944  ;  R.  v.  Shepherd,  Ibid.  ;  State  v.  Nevins,  23  Vt. 
519  ;   People  v.  Howell,  4  Johns.  29G.     So  is  a  post-dated  check  ;   R.  v.  Taylor, 

I  C.  &  K.  213;  but  not  a  warrant  for  wages.  R.  v.  Mitchell,  2  F.  &  F.  44. 
The  writing  need  not  be  of  a  business  character,  nor  negotiable.  2  Russ.  on 
Crimes,  514.  It  is  now  settled  in  England  that  if  the  document  be  set  out  in 
words  a  misdescription  will  be  immaterial,  at  least  if  it  fall  within  one  of  several 
terms  used  to  designate  it.  R.  v.  Williams,  2  Den.  C.  C.  €1  ;  4  Cox  C.  C.  356. 
But  simply  "  W.  Trim,  2s.,"  is  insensible  and  incurable.  R.  v.  Ellis,  4  Cox 
C.  C.  258. 

Where  there  is  a  question  whether  the  document  is  an  "  order,"  or  "  request," 
or  "warrant,"  it  is  safe  to  give  to  each  designation  a  separate  count.  Wh.  Cr. 
PI.  &  Pr.  §§  162,  195,  257. 

If  the  writing,  on  its  face,  comes  short  of  being  either  an  order,  warrant,  re- 
quest, or  other  statutory  term,  averment  may  be  made,  and  evidence  received, 
bringing  it  up  to  the  re(|uired  standard,  as  where  the  name  of  the  party  addressed 
is  omitted.  R.  v.  Pullbrook,  9  C.  &  P.  37;  R.  v.  Carney,  1  Mood.  351.  See 
R.  V.  Rogers,  9  C.  &  P.  41.  The  same  rule  obtains  where  the  body  of  the  writ^ 
ing  is  on  its  face  insensible.  R.  u.  Hunter,  2  Leach  C.  C.  624;  R.  u.  Walters, 
C.  &  M.  588  ;  R.  V.  Atkinson,  C.  &  M.  325  ;  R.  v.  Cullen,  1  Moody,  300 ;  R. 
V.  Pullbrook,  9  C.  &  P.  37;   Com.  ;;.  Spilman,  124  Mass.  327;   Carberry  v.  State, 

II  Oh.  St.  410;  State  v.  Crawford,  13  La.  An.  300;  Wh.  Cr.  L.  8th  ed.  §§  728 
et  seq.  And  where  the  fraudulent  or  illegal  character  of  the  document  does  not 
appear  on  its  face,  this  must  be  helped  out  by  averments.  Ibid.;  Com.  v.  Hinds, 
101  Mass.  209;  Com.  v.  Costello,  120  Mass.  359. 

'^^ Deeds." — To  sustain  the  averment  of  a  deed,  there  must  be  a  writing  under 
seal,  purporting  to  pass  some  legal  right  from  one  party  to  another,  either  medi- 
ately or  immediately.  R.  v.  Fauntleroy,  1  C.  &  P.  421  ;  1  Moody,  52.  Nor  is 
it  necessary  that  a  deed  should  rigorously  pursue  the  statutory  form.  R.  v.  Lyon, 
R.  &  R.  C.  C.  255.     Prima,  facie  validity  is  enough. 

^'■Ohligation." — When  a  statute  uses  this  terra  as  distinguished  from  "notes" 
and  other  documents  importing  obligation,  it  must  be  construed  in  its  narrow  com- 
mon law  sense.  It  is  otherwise  when  the  term  is  used  in  a  statute  as  noinen  fjene- 
raliasimutn,  in  which  case  it  must  be  construed  in  its  most  liberal  sense.  See 
Fogg  V.  State,  9  Yerg.  392. 

The  same  distinction  is  applicable  to  the  term  "  undertakinrj."  R.  v.  West,  1 
Den.  C.  C.  258;   2  C.  &  K.  496;   S.  P.,  Clark  v.  Newsam,  1  Exch.  131. 

A  '■'■  quarantee"  is  an  undertaking,  R.  o.  Joyce,  10  Cox  C.  C.  100;  L.  &  C. 
576  ;  R.  V.  Reed,  2  Moody,  62;  and  so  is  a  bare  "  I.  O.  U."  without  any  ex- 
pressed consideration.     R.  V.  Chambers,  L.  R.  1  C.  C.  341. 

'■'■  Property"  includes  whatever  may  be  appropriated  to  individual  use.  Money 
falls  within  this  definition.      People  v.  Williams,  24  Mich.  156. 

'•'■Piece  of  Paper." — A  count  for  stealir.g  "  one  piece" of  pai)er,  of  the  value  of 
one  cent,"  may  be  good,  when  a  count  for  stealing  a  bank  note  fails  (11.  v.  Perry, 
1  Den.  C.  C.*69  ;  1  C.  &  K.  727,  and  authorities  cited  in  Wli.  Cr.  PI.  &  Pr."  g 
214),  in  consequence  of  the  document  descril)ed  being  void. 

Personal  chattels  must  be  described  sjtecilically  by  the  names  usually  appropri- 
ated to  them,  and  the  number  and  value  of  eacli  species  or  particular  kind  of  goods 
stated  (see  2  Hale,  182,  183;  People  y.  Coeu,  45  Cal.  672  ;  Wh.  Cr.  Ev.  §§  121-6); 

387 


(415) 


OFFENCES   AGAINST   PROPERTY. 


thus,  for  instance,  "one  coat  of  the  value  of  twenty  shillings  ;  two  pairs  of  boots, 
each  pair  of  the  value  of  thirty  shillings  ;  two  pairs  of  shoes,  each  pair  of  the  value 
of  twelve  shillings  ;  two  sheets,  each  of  the  value  of  thirteen  shillings  ;  of  the  goods 
and  chattels  of  one  J.  S.,"  or  "  one  sheep  of  the  price  of  twenty  shillings,"  etc., 
and  the  like.  If  the  description  were  "  twenty  wethers  and  ewes,"  the  indictment 
would  be  bad  for  uncertainty  ;  it  should  state  how  many  of  each.  2  Hale,  183  ; 
Archbold's  C.  P.  45.  Otherwise  in  Texas.  State  v.  Murphy,  39  Tex.  46.  But 
an  indictment  charging  the  defendant  with  feloniously  taking  three  head  of  cattle 
has  been  held  sufficiently  certain  under  a  statute,  without  showing  the  particu- 
lar species  of  cattle  taken.     People  i\  Littlelield,  5  Cal.  355. 

When  several  articles  are  stated,  it  is  not  necessary  to  separate  them  by  the 
connecting  word  "and."     State  v.  Bartlett,  55  Me.  200. 

When  several  notes  are  stolen  in  a  bunch,  it  is  rarely  that  the  prosecutor  can 
designate  their  respective  amounts  and  values.  As  a  matter  of  necessity,  there- 
fore, an  indictment  charging  the  larceny  of  "sundry  bank  bills,  of  some  banks 
respectively  to  the  jurors  unknown,  of  the  value  of  $38,"  etc.,  is  sufficient.  Com. 
IK  Grimes,  10  Gray,  470;  Com.  i\  Sawtelle,  11  Cush.  142.  And  there  is  even 
authority  to  the  effect  that  it  is  enough  to  say  "divers  bank  bills,  amounting  in 
the  whole  to,  etc  ,  and  of  the  value  of,  etc.,  of  the  goods  and  chattels,"  etc.  Larned 
V.  Com.,  12  ]\Iet.  240;  Com.  v.  O'Connell,  12  Allen,  451;  State  v.  Taunt,  16 
Minn.  109;  contra,  Hamblett  v.  State,  18  N.  H.  384;  Low  v.  People,  2  Park. 
C.  R.  37.     See  Com.  v.  Cahill,  12  Allen,  540. 

An  indictment  charging  the  defendant  with  the  larceny  of  "  six  handkerchiefs" 
is  good,  though  the  handkerchiefs  were  in  one  piece,  the  pattern  designating  each 
handkerchief.     6  Term  R.  267;   1  Ld.  Raym.  149;   Wh.  Cr.  Ev.  §"121. 

It  is  sufficiently  certain  to  describe  the  article  stolen  as  "one  hide,  of  the 
value,"  etc.  (State  r.  Dowell,  3  Gill  &  J.  310),  or  "one  watch,"  etc.  Widner 
I'.  State,  25  Ind.  234. 

An  indictment  charging  A.  with  stealing  a  printed  book,  of  the  value,  etc.,  is 
correct,  and  the  title  of  the  book  need  not  be  stated.  State  v.  Dowell,  3  Gill  & 
J.  310;   State  v.  Logan,  1  Mo.  377. 

'■'■Lot  of  Lumber,''  '■'■Parcel  of  Oats,"  ^^  Mixtures." — In  Louisiana  judg- 
ment was  arrested  on  an  indictment  which  charged  the  defendant  with  stealing  a 
"  lot  of  lumber,"  a  "certain  lot  of  furniture,"  and  "certain  tools."  State  v. 
Edson,  10  La.  An.  R.  229.  On  the  other  hand,  in  North  Carolina,  a  "parcel 
of  oats"  was  adjudged  a  sufficient  description  of  the  stolen  property.  State  v. 
Brown,  1  Dev.  137.  The  reason  of  tliis  distinction  is,  that  in  the  first  case  a 
closer  description  was  possible  ;  in  the  second,  not  so.  And  a  general  descrip- 
tion in  larceny  is  enough.  This  doctrine  is  founded  partly  on  the  fact  that  the 
prosecutor  is  not  considered  in  possession  of  the  article  stolen,  and  is  not,  there- 
fore, enabled  to  give  a  minute  description ;  and  principally,  because,  notwith- 
standing the  general  description,  it  is  made  certain  to  the  court,  from  the  face  of 
the  indictment,  that  a  crime  has  been  committed,  if  the  facts  be  true.  State  v. 
Scribner,  2  Gill  &  J.  246. 

Substances  mechanically  mixed  should  not  be  described  in  an  indictment  as  a 
"  certain  mixture  consisting  of,"  etc.,  but  by  the  names  applicable  to  them  before 
such  mixture,  though  it  is  otherwise  with  regard  to  substances  chemically  mixed. 
R.  I'.  Bond,  1  Den.  C.  C.  517. 

It  has  been  held  in  Massachusetts  that  where  brandy  was  feloniously  drawn 
from  a  cask,  and  then  bottled,  it  could  not  be  described  in  the  indictment  as 
"bottles  of  brandy."     Com.  v.  Gavin,  121  Mass.  54. 

As  to  variance,  see  \¥Ii.  Cr.  Ev.  §  121. 

W^hen  animals  are  stolen  alive,  it  is  not  necessary  to  state  them  to  be  alive ; 
but  if  when  stolen  the  animals  were  dead,  that  fact  must  be  stated.  R.  v.  Ed- 
wards, R.  &  R.  497  ;  R.  V.  Halloway,  1  C.  &  P.  128  ;  Com.  v.  Beaman,  8  Gray, 
497.  See  R.  v.  AVilllams,  1  Mood'.  C.  C.  107.  AVh.  Cr.  L.  8th  ed.  §  871. 
If  an  animal  have  the  same  appellation  whether  it  be  alive  or  dead,  this  appel- 

388 


LARCENY — DESCRIPTION  OF  PROPERTY.         (415) 

lation  is  a  sufficient  description.  R.  i\  Puckering,  l  Mood.  C.  C.  242 ;  but  see 
Com.  V.  Beaman,  8  Gray,  497;   Wh.  Cr.  Ev.  §  124  ;   Wh.  Cr.  L.  8th  ed.  §  874. 

Whether  a  description  is  sufficient  depends  in  statutory  cases  hirgely  on  the 
statute.  See  Wh.  Cr.  PI.  &  Pr.  §  237.  It  has  been  held  that  "one  sheep"  is 
a  sufficiently  exact  description,  State  v.  Pollard,  53  Me.  124;  Wh.  Cr.  Ev.  § 
824;  and  so  is  "a  chestnut  sorrel  horse,"  Taylor  v.  State,  44  Ga.  2G3  ;  and 
"one  beef  steer,"  Short  r.  State,  36  Tex.  644;  and  "one  black  pig,  white 
listed,  and  one  white  pig,  with  a  blue  rump,  both  without  ear  marks,  of  the  value 
of  $2.00."  Brown  v.  State,  44  Ga.  300.  But  "a  yearling"  is  not  sufficiently 
specific.     StoUenwerk  ?'.  State,  55  Ala.  142. 

An  indictment  charging  the  stealing  "  one  ham,"  of  the  value  of  ten  shillings, 
of  the  goods  and  chattels  of  T.  H.,  was  held  good,  although  it  did  not  state  the 
animal  of  which  the  ham  had  formed  a  part.  R.  v.  Gallears,  2  C.  &  K.  981  ;  1 
Den.  C.  C.  501.  But  an  indictment  for  stealing  "meat"  is  bad  for  generality. 
State  V.  Morey,  2  Wis.  494  ;   State  v.  Patrick,  79  N.  C.  656. 

Specification  is  necessary  when  certain  members  of  a  class  are  subjects  of  in- 
dictment, and  certain  otliers  not.  Thus  an  indictment  for  stealing  "  three  eggs" 
has  been  ruled  to  be  bad,  because  only  the  eggs  of  animals  domitae  naturae  are 
the  subject  of  larceny.  R.  v.  Cox,  1  C.  &  K.  487  ;  1  Den.  C.  C.  502,  sed  quaere. 
See  Wh.  Cr.  L.  8th  ed.  §  870.  But  an  indictment  for  bestiality,  which  de- 
scribed the  animal  as  "a  certain  bitch,"  was  held  sufficiently  certain,  although 
the  females  of  foxes  and  some  other  animals,  as  well  as  of  dogs,  are  so  called. 
R.  V.  Allen,  1  C.  &  K.  495.  In  larceny  this  would  be  bad,  as  the  term  would 
not  indicate  whether  or  no  the  animal  was  larcenous.  Wh.  Cr.  L.  8th  ed.  §§ 
869-871.     In  bestiality  this  distinction  is  immaterial. 

An  indictment  charging  the  stealing  of  certain  "  gold-bearing  quartz-rocks," 
is  bad.  It  should  appear  that  the  rock  was  severed  from  the  realty.  State  v. 
Burt,  64  N.  C.  619;  People  v.  Williams,  35  Cal.  671;  Wh.  Cr.  L.  8th  ed. 
§  865. 

The  prosecutor  is  bound  by  the  description  of  the  species  of  goods  stated  ;  but  a 
variance  in  the  number  of  the  articles  is  immaterial  when  the  articles  are  divisible, 
and  the  verdict  rests  upon  an  article  within  the  number  alleged.  R.  v.  Forsyth,  R. 
&  R.  274;  Hope  v.  Com.,  9  Met.  134;  Com.  v.  Cahill,  12  Allen,  540;  State  o. 
Fenn,  41  Conn.  590.  Thus  if  there  be  ten  different  speciesof  goods  enumerated. 
and  the  prosecutor  prove  a  larceny  of  any  one  or  more  of  a  sufficient  value,  it  will 
be  sufficient,  although  he  fail  in  his  proof  of  the  rest.  Com.  v.  Eastman,  2  Gray, 
76:  Com.  v.  Williams,  2  Cush.  583;  People  v.  AViley,  3  Hill  N.  Y.  194.  Infra, 
§§  252,  470  ;  Wh.  Cr.  Ev.  §  145.  But  it  was  held  otherwise  where  five  certifi- 
cates of  stock  of  a  particular  number  were  alleged  to  be  stolen,  and  it  appeared 
that  only  one  certificate  of  that  number  had  been  issued.  People  v.  Coon,  45 
Cal.  672. 

Money  and  Coin. — Money  is  described  as  so  many  pieces  of  the  current  gold 

or  silver  coin  of  the  country,  called .     Tlie  species  of  coin  must  be  specified. 

R.  V.  Fry,  R.  &  R.  482.  See  R.  v.  Warshoner,  1  Mood.  C.  C.  466  ;  People  v. 
Ball,  14  Cal.  100  ;  contra,  U.  S.  v.  Rigsby,  2  Cranch  C.  C.  R.  364.  As  to  de- 
scription in  forgery  see  Wh.  Cr.  L.  8th  ed.  §  751.  The  subject  of  variance  is 
elsewhere  discussed.     Wh.  Cr.  Ev.  §  122. 

"  Twenty-five  dollars  in  money"  is  not  a  sufficiently  exact  designation.  Smith 
V.  State,  33  Ind.  159;  Merwin  v.  People,  26  Mich.  298;  Lavarre  v.  State,  1 
Tex.  App.  685;  and  so  substantially  is  State  v.  Longbottoms,  11  Humph.  39. 

"Bank  notes"  have  been  already  noticed.  ^ 

"  United  States  gold  coin"  is  e([uivalent  to  "  gold  com  of  the  United  States." 
In  McCane  v.  State,  11  Ind.  195,  "  sixty  dollars  of  the  current  gold  coin  of  the 
United  States"  was  held  enough.  See  also  State  v.  Green,  27  La.  An.  598. 
Judicial  notice  will  be  taken  of  the  fact  that  a  gold  coin  of  the  denomination  and 
value  of  ten  dollars  is  an  eagle.  Daily  v.  State,  10  Ind.  536.  See  Wh.  Cr. 
Ev.  §  122. 

Generality  of  description,  as  we  have  seen,  may  be  excused  by  an  averment 

389 


(415)  OFFENCES    AGAINST    PROPERTY. 

that  the  precise  cliaraoter  and  value  of  the  coin  or  notes  are  unknown  to  the 
gi-andjury.  An  indietmeiit  for  larcenv  tW>m  the  pt-rson  of  "  sundry  gold  coins, 
current  as  money  in  this  commomvealth,  of  the  aggregate  value  of  twenty-nine 
doUars,  but  a  more  particnlar  description  of  ivliieh  the  jurors  cannot  give,  as  they 
have  no  means  of  kno-vvledge,"  and  containing  similar  allegations  as  to  b;ink  bills 
and  silver  coin,  is  sufficiently  specific  to  irarrant  a  judgment  upon  a  general  ver- 
dict of  gnilty.  Com.  r.  Sayftelle.  11  Cusb.  142;  Com.  ir.  Butts,  124  Mass.  449  ; 
People  V.  Bogart,  36  Cal.  245.      See  snpro,  pp.  381,  S85. 

And  so  «  fortiori  as  to  an  averment  of  "  four  hundred  and  fifty-  dollars  in  specie 
coin  of  the  United  States,  the  denomination  and  description  of  which  is  to  the 
gi-and  jury  unknown."  Chisholm  (?.  State,  45  Ala.  66.  As  to  allegation  "un- 
known" see  further  Wh.  Cr.  Ev.  §§  97,  122;  itupra^  p.  20. 

But  where  practicable  the  pieces  charged  to  be  stolen  should  be  specifically 
designated.  Leftwieh  v.  Com.,  20  Grat.  716  ;  People  v.  Ball,  34  Cal.  101  ;  Mur- 
phy^J.  State,  6  Ala.  845. 

"  Of  the  moneys  of  the  said  M.  N."  sufficiently  describes  oyrnership.  R.  v. 
Godfrey,  D.  &  B.  426  ;  Wh.  Cr.  L.  8th  ed.  §  979. 

Where  the  indictment  charges  stealing  a  particular  note  or  piece  of  coin,  and 
the  evidence  is  that  such  note  or  coin  -n-as  given  to  the  defendant  to  change,  who 
refused  to  return  the  change,  the  defendant,  even  ander  the  stijtutes  making  such 
conversion  larceny,  cannot  be  convicted  of  stealing  the  change  ;  for  there  is  a 
fatal  variance  between  the  description  in  the  indictment  and  the  proof.  R.  r. 
Jones,  1  Cox  C.  C.  105;  R.  v.  Wast,  D.  &  B.  109;  7  Cox  C.  C.  183;  R.  v. 
Bird,  12  Cox  C.  C.  257  ;  and  other  cases  eitefl  supra  ;  Wb.  Cr.  Ev.  §  123.  But 
an  indictment  charging  the  larceny  of  the  note  or  coin  actisally  given  to  the  de- 
fendant may  be  good.     Com.  v.  Barry,  124  Mass.  325. 

{(/)  Value. — It  is  necessary  that  some  specific  value  should  be  assigned  to 
■whatever  articles  are  charged  as  the  .subjects  of  larceny.  Roseoe's  Crim.  Ev.  512  ; 
State  V.  Goodrich,  46  N.  H.  ISG  ;  State  v.  Fenn,  41  Conn.  590;  People  v. 
Payne,  6  Johns.  103  ;  State  v.  Stimson,  4  Zab.  9  ;  State  v.  Smart,  4  Rich.  356; 
State  V.  Tillery,  1  Nott  &  McCord,  9  ;  State  p.  Thomas,  2  JNlcCord,  527  ;  State 
r.  AVilson,  1  Porter,  118;  State  v.  Allen,  Charlton,  518;  Merwin  f.  People,  26 
IVIich.  298;  Moi^an  i'.  State,  13  Fla.  671;  Sheppanl  i-.  State,  42  Ala.  531; 
supra,  §  200;  Wh.  Cr,  Ev.  §  126;  Wh.  Cr.  L.  8th  ed.  §  951.  An  indictment 
cannot  be  sustained  for  stealing  a  thing  of  no  intrinsic  or  artificial  value.  State 
r.  Bryant,  2  Car.  Law  Rep.  617. 

Value  is  only  material  in  those  eases  in  which  an  offence  is  graduated  in  con- 
formity to  the  value  of  the  thing  taken.  People  r.  Stetson,  4  Barb.  151  ;  Peo- 
ple ;•.  Higbee,  66  Barb.  131  ;  State  v.  Gillesi>ie,  80  N.  C.  396  ;  Lunn  w.  State, 
44  Tex.  85-  And  where  the  value  of  a  thing  which  is  the  subject  of  the  ofience 
is  necessary  to  fix  the  grade  of  the  offence,  it  is  a  proper  mode  of  stating  it  to 
aver  that  the  thing  is  of  or  more  than  tlie  value  prest-ribed  by  the  statute  desig- 
nating such  value.     Phelps  v.  People,  72  N.  Y.  334. 

An  averment  of  the  value  of  bank  notes,  not  legtd  tender,  is  always  necessary, 
but  not  so  of  government  coins,  which  are  values  themselves.  State  r.  Stimson, 
4  Zabr.  (N.  J.)  9  ;  Grant  v.  State,  55  Ala.  201  ;  WHi.  Cr,  PI.  &  Pr.  ?  218.  A 
description  in  an  indictment  in  these  words,  "ten  five-dollar  bank  bills  of  the 
value  of  five  dollars  each,"  is  sufficiently  definite.  Eyland  v.  State,  4  Sneed, 
357. 

A  collective  or  lumping  valuation,  so  far  as  demurrer  or  arrest  of  judgment  is 
concerned,  is  always  permissible.  State  v.  Hood,  51  Me.  363  ;  Com.  v.  Grimes, 
10  Gray,  470;  People  yiRobles,  34  Cal.  591.  In  Com.  v.  O'Connell,  12  Allen, 
451,  the  indictment  was  "for  a  quantity  of  bank  notes  current  within  this  com- 
monwealth, amounting  together  to  one  hundred  and  fifty  dollars,  and  of  the  value 
of  one  hundred  and  fifty  dollars."  It  was  said  by  the  court  that  "it  is  not  per- 
ceived that  the  descrij»tion  of  bank  bills  as  'a  quantity,'  instead  of  'divers  and 
sundry,'  constitutes  an  error.  And  the  statement  of  the  aggregate  of  the  property 
stolen,  where  all  the  articles  are  of  one  kind,  has  been  sanctioned  by  the  court." 

390 


LARCENY — DESCRIPTION    OF    PROPERTY.  (415) 

Com.  V.  Sawtelle,  11  Cush.  142.  Upon  such  an  indictment,  when  the  articles 
are  all  of  one  class,  the  defendant  may  be  convicted  of  stealing  a  less  sum  than 
that  charged  in  the  indictment.     Com.  i'.  O'Connell,  12  Allen,  451. 

But  when  articles  of  different  kinds,  e.  g.,  "sundry  bank  bills,  and  sundry 
United  States  treasury  notes,"  are  thus  lumped  with  a  common  value,  the  indict- 
ment cannot  be  sustained  by  proof  of  stealing  only  a  part  of  the  articles  enume- 
rated. Wh.  Cr.  Ev.  §  126;  Cora.  v.  Cahill,  12  Allen,  .540.  Nor  can  a  con- 
viction for  stealing  a  part  of  the  articles  charged  be  sustained  unless  to  such  part 
sufficient  value  is  assigned  or  implied.  Hamblett  v.  State,  18  N.  H.  384;  Lord 
V.  State,  20  N.  H.  404;  State  v.  Goodrich,  46  N.  H.  186;  Com.  v.  Smith,  1 
Mass.  245  ;  Low  v.  People,  2  Parker  C.  R.  37  ;  Collins  v.  People,  39  111.  233 ; 
Shepard  v.  State,  42  Ala.  531. 

(e)  As  has  been  already  observed,  it  is  of  necessary  importance  that  the  name 
of  the  party  whose  goods  are  alleged  to  have  been  stolen  should  be  given  cor- 
rectly. See  notes  to  form  2,  supra,  pp.  20  et  seq.  In  applying  this  principle, 
there  are  several  points  which  it  is  essential  to  keep  in  mind  in  determining  the 
question  of  property  in  each  particular  case. 

1.  AVhere  goods  are  stolen  out  of  the  possession  of  the  bailee,  they  may  be  de- 
scribed in  the  indictment  as  the  property  of  either  bailor  or  bailee.  Wh.  Cr.  L. 
8th  ed.  §  932;  Arch.  C.  P.  10th  ed.  212;  State  v.  Somerville,  21  Maine,  586; 
State  V.  Grant,  22  Maine,  171.  The  cases  usually  given  as  an  illustration  of  this 
rule  are  those  of  goods  left  at  an  inn  (R.  v.  Todd,  2  East,  P.  C.  658)  ;  cloth 
given  to  a  tailor  to  manufacture,  and  linen  to  a  laundress  to  wash  (R.  v.  Packer, 
2  East,  P.  C.  658)  ;  chattels  intrusted  to  a  person  for  safe  keeping  (R.  v.  Taylor, 
1  Leach,  356;  R.  v.  Slatham,  lb.;  see  R.  v.  Ashley,  1  C.  &  K.  198);  goods 
levied.on  by  a  constable  and  ia  his  custody  (People  r.  Palmer,  10  Wend.  165)  ; 
in  each  of  these  cases  the  property  may  be  laid  as  the  goods  and  chattels  of  the 
bailee  or  of  the  owner,  at  the  option  of  the  prosecutor.  See  2  Hale,  181  ;  1  lb. 
613  ;  1  Hawk.  c.  33,  s.  47  ;  R.  r.  Bird,  9  C.  &  P.  44.  But  the  bailee  of  a  bailee 
has  no  such  special  property  as  would  authorize  the  goods  being  laid  as  his.  Thus 
an  indictment  will  be  vicious  which  lays  the  property  of  goods  taken  in  execution 
in  the  bailee  or  receiptor  of  the  sheriff.  Com.  v.  Morse,  14  Mass.  217  ;  Norton 
V.  People,  8  Cow.  137.  The  property  also  cannot  be  laid  in  one  who  has  neither 
had  the  actual  nor  constructive  possession  of  the  goods,  and  thus  where  the  per- 
son named  as  owner  was  merely  servant  to  the  real  owner,  or  where  the  property 
was  laid  in  the  master  who  actually  had  never  seen  or  received  the  goods,  and 
where  in  fact  the  servant  had  been  specially  intrusted  with  them,  the  ownership 
was  held  to  be  wrongly  laid.  R.  v.  Hutchinson,  R.  &  R.  412;  R.  v.  Ruddick, 
8  C.  &  P.  237.  But  as  a  general  rule,  ownership,  absolute  or  special,  will  sus- 
tain the  averment.     Wh.  Cr.  L.  8th  ed.  §  932. 

2.  Goods  stolen  from  a  dead  person,  such  as  the  coffin  or  shroud,  must  be  laid 
in  the  executors  and  administrators,  if  there  be  su(;h,  and  if  not,  in  the  person 
who  defrayed  the  expenses  of  the  funeral.     Wh.  Cr.  L.  8th  ed.  ?  937. 

3.  Goods  stolen  from  a  married  Avoman  must  be  laid  as  the  property  of  her 
husband,  even  though  she  lives  in  separation  from  him,  with  an  income  vested  in 
trustees  for  her  private  use.  Wh.  Cr.  L.  8th  ed.  §  940  ;  Arch.  C.  P.  10th  ed. 
213.  Under  the  married  woman's  acts,  they  may  be  laid  as  her  own,  though  it  is 
desirable  to  add  a  count  averring  the  ownersliip  to  be  in  her  husband.  In  any 
view  he  has  such  special  ownership  that  a  count  charging  him  as  owner  is  good. 
Wh.  Cr.  L.  8th  ed.  §  940  and  cases  there  given.  AVhere  goods  were  stolen  from 
a  single  woman,  who  afterwards  before  indictment  married,  it  was  held  that  the 
property  was  rightly  laid  in  her  by  her  maiden  name.   B.  i\  Turner,  1  Leach,  536. 

4.  At  common  law  where  the  owners  form  an  unincorporated  partnership,  the 
names  of  all  of  them  must  be  correctly  stated  (Wh.  Cr.  L.  8th  ed.  §  935),  and 
even  where  the  property  was  temporarily  vested  in  one  of  them,  the  names  of  all 
the  members  of  the  firm  must  be  set  out.  Hogg  v.  State,  3  Blackf.  32G  ;  R.  v. 
Shovington,  1  Leach,  513;  R.  v.  Beacall,  1  Mood.  C.  C.  15  (but  see  Marcus  v. 
State,  26  Ind.  101  ;   State  v.  Cunningham,  21  Iowa,  433).     But  if  the  goods  of  a 

391 


(417)  OFFENCES  AGAINST  PROPERTY. 

(416)  Stealing  the  property  of  different  persons. 

That  defendant,  on,  etc.,  at,  etc.,  one  silver  watch,  of  the  value 
of  forty  shillings,  of  the  oroods  and  chattels  of  E.  T.,  two  hats,  of 
the  value  of  twenty  shillings,  and  two  waistcoats,  of  the  value 
of  six  shillings,  of  the  goods  and  chattels  of(^)  one  G.  H.,  then 
and  there  being  found,  feloniously  did  steal,  take,  and  carry 
away,  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(417)  Larceny  at  a  navy  yard  of  the  United  States. 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  and  within  the  navy  yard 
adjoining  the  city  of  Brooklyn,  in  the  county  of  Kings,  in  the 
southern  district  of  New  York  aforesaid,  the  site  of  which  said 
navy  yard  had  been  before  the  said  day  of  in  the 

year  last  aforesaid,  ceded  to  the  said  United  States,  and  was  on 
the  said  last  mentioned  day  then  and  there  under  the  sole  and 
exclusive  jurisdiction  of  the  said  United  States,  feloniously  did 
take  and  carry  away,  with  intent  to  steal  and  purloin  [state  deji- 
nitely  the  things  taken,  and  the  value  of  each  separately),  said  {as 
before)  then  and  there  being  the  property  of  one  against, 

etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

corporation  are  stolen,  the  property  must  be  charged  to  be  in  the  corporation  in 
its  corporate  name,  and  not  in  tlie  individuals  who  comprise  it.  Wh.  Cr.  L.  8th 
ed.  §  941  ;  R.  i\  Patrick,  2  East,  P.  C.  1059  ;  1  Leach,  253  ;  Arch.  C.  P.  10th 
ed.  214.  It  is  not  necessary  to  aver  the  political  existence  of  a  domestic  cor- 
poration, as  that  is  a  matter  for  evidence,  and  after  verdict  it  may  be  inferred 
from  the  name.     Lithgow  v.  Com.,  2  Va.  Cas.  296.     See  supra,  p.  20. 

5.  Necessaries  furnished  by  a  parent  to  a  child,  may  be  laid  as  the  property  of 
either  parent  or  child  (Arch.  C.  P.  10th  ed.  213;  2  East,  P.  C.  654),  though  it 
is  safer  to  allege  them  to  be  the  property  of  the  child.  R.  i'.  Forsgate,  1  Leach, 
463  ;  E,.  V.  Hughes,  C.  &  M.  593.  See  for  recent  authorities  Wh.  Cr.  L.  8th 
ed.  §  947. 

6.  Where  the  owner  is  unknown  it  is  to  be  so  stated  (Com.  v.  Morse,  14  Mass. 
217  ;  Com.  v.  Manley,  12  Pick.  173;  1  Hale,  512  ;  Wh.  Cr.  L.  8th  ed.  §  949); 
though  if  the  names  of  the  owners  appear  on  the  trial  to  have  been  known  to 
the  grand  jury  at  the  finding  of  the  indictment,  the  defendant  must  be  accpiitted. 
11.  V.  Walker,  3  Camp.  2G4  :  R.  v.  Robinson,  Holt.  N.  P.  C.  595.  Qucere,  Com. 
V.  Stodihirt,  9  Allen  (^Nlass.),  280.      See  fully  si/;j;-rt,  p.  20. 

(/)  Where  the  subject  of  the  larceny  is  live  cattle,  "steal,  take,  'dnd  lead 
away,"  may  be  substitutt^d.  "  7'aAe,"  however,  is  essential.  Wh.  Cr.  PI.  & 
Pr.  §  266;   2  Hale,  184. 

[g)  Where  the  felonies  are  completely  distinct,  they  ought  not  to  be  joined  in 
the  same  indictment  (see  notes  to  form  2,  supra,  p.  31  ;  Wh.  Cr.  PL  &  Pr.  § 
285),  but  where  the  transaction  is  the  same,  as  where  the  property  of  different 
persons  is  taken  at  the  same  time,  there  seems  to  be  no  objection  to  the  joinder. 
Ibid.  ;  People  i;.  Thompson,  28  Cal.  214. 

392 


LARCENY.  (^18) 

Second  count. 

{Like  Jirst  count,  substituting) :  "then  and  there  being  of  the 
personal  goods  of  one  ,"  for  "  then  and  there  being  the 

property  of  one  ." 

Third  count. 

{Like  second  count,  substituting):  "being  then  and  there  the 
personal  goods  of  some  person  or  persona  to  the  said  jurors 
unknown,"  for  "then  and  there  being  of  the  personal  goods 
of  one  ." 

{For final  count,  see  supra,  14,  15,  16,  181  n.,  239  ?j.) 

(418)  Larceny  on  the  high  seas. 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  in  and  on  board  of  a  certain 
American  vessel,  being  a  called  the  belonging  in  whole 

or  in  part  to  a  certain  person  or  persons,  then  and  still  being 
a  citizen  or  citizens  of  the  United  States  of  America,  whose 
name  or  names  are  to  the  said  jurors  unknown,  on  tlie  high 
seas,  out  of  the  jurisdiction  of  any  particular  state  of  the  said 
United  States,  on  waters  within  the  admiralty  and  maritime 
jurisdiction  of  the  said  United  States,  and  within  the  jurisdic- 
tion of  this  court,  feloniously  did  take  and  carry  away  {state  the 
nature  of  the  things  taken,  their  payiicular  name  and  value),  with 
intent  to  steal  or  purloin  the  same,  against,  etc.,  and  against, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

Second  courd. 

{Like  first  count,  inserting  after  the  specification  of  the  articles 
taken,  and  before):  "with  intent  to  steal  or  purloin  the  same," 
"  of  the  personal  goods  of  some  person  or  persons  to  the  said 
jurors  unknown." 

Third  count. 

{Like  second  count,  substituting):  "of  the  personal  goods  of 
one  ■,''  for  "of  the  personal  goods  of  some  person  or  per- 

sons to  the  said  jurors  unknown." 

{For final  count,  see  supra,  14,  15,  16,  181  n.,  239  ?;.) 

393 


(420)  OFFENCES  AGAINST  PROPERTY. 

(419)  Larcevy  on  the  high  seas.     Another  form. 

That  A.  B.,  on,  etc.,  at,  etc.,  in  and  on  board  of  a  certain  ves- 
sel being  a  called  the  belonging  and  appertaining, 
in  whole  or  in  part,  to  a  certain  person  or  persons  then  and 
still  being  a  citizen  or  citizens  of  the  United  States  of  America, 
whose  names  are  to  the  said  jurors  unknown,  on  the  high  seas, 
out  of  the  jurisdiction  of  any  particular  state  of  the  said 
United  States,  within  the  admiralty  and  maritime  jurisdiction 
of  the  said  United  States  of  America,  and  of  this  court,  felo- 
niously did  take  and  carry  away,  with  intent  to  steal  and  pur- 
loin {here  state  particularly  each  article^  ayid  the  value  of  each  sej/a- 
rately)^  of  the  personal  goods  of  some  person  or  persons  to  the 
jurors  aforesaid  as  yet  unknown,  against,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

{Same  as  first  count,  substituting):  "belonging  and  appertain- 
ing, in  whole  or  in  part,  to  one  then  and  still  being  a 
citizen  of  the  United  States  of  America,"  for  "belonging  and 
appertaining,  in  whole  or  in  part,  to  a  certain  person  or  persons 
then  and  still  being  a  citizen  or  citizeng  of  the  United  States  of 
America,  whose  names  are  to  the  said  jurors  unknown." 

Third  count. 

{Like  first  count,  substituting) :  "  of  the  personal  goods  of  one 
,"/or  "of  the  personal  goods  of  some  person  or  persons 
to  the  jurors  aforesaid  as  yet  unknown." 

Fourth  count. 

{Like  second  count,  substituting):  "of  the  personal  goods  of 
one  ^''  for  "of  the  personal  goods  of  some  person  or  per- 

sons to  the  jurors  aforesaid  as  yet  unknown." 

{For final  count,  see  supra,  14,  15,  16,  17,  181  n.,  239  n.) 

(420)  Larceny  in  an  American  ship  at  the  Bahayna  Islands. 

That,  etc.,  on  board  of  a  certain  vessel,  to  wit,  a  sloop,  called 
the  "C.  W.,"  then  and  there  belonging  to  S.  P.  W.,  J.  C.  B., 
and  N.  F.,  citizens  of  the  United  States,  while  lying  in  a  place, 
394 


LARCENY.  (422) 

to  wit,  Great  Harbor,  in  Long  Island,  one  of  the  Bahama 
IsLands,  within  the  jurisdiction  of  a  certain  foreign  sovereign,  to 
wit,  the  king  of  the  United  Kingdom  of  Great  Britan  and 
Ireland,  a  certain  J.  P.  M.,  otherwise  called  J.  M,,  otherwise 
called  P.  M.,  late  of  the  district  aforesaid,  mariner,  then  and 
there  being  a  person  belonging  to  the  company  of  the  said  ves- 
sel, did  take  and  carry  away,  with  an  intent  to  steal  and  pur- 
loin, certain  personal  goods  of  the  said  P.  W".,  to  wit,  one  quad- 
rant, of  the  value  of  twenty  dollars,  one  reflecting  semicircle, 
of  the  value  of  twenty  dollars,  twenty-four  lunar  tables,  of  the 
value  of  twenty-four  dollars,  one  shaving  box  and  glass,  of  the 
value  of  five  dollars,  one  chart,  of  the  value  of  one  dollar,  con- 
trary, etc.,  and  against,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

(421)  Second  count.     Receiving.,  etc. 

That,  etc.,  on  board  of  a  certain  vessel,  to  wit,  a  sloop,  called 
the  "C.  W.,"  then  and  there  belonging  to  S.  P.  W.,  J.  C.  B., 
and  ]Sr.  F.,  citizens  of  the  United  States,  while  lying  in  a  place, 
to  wit.  Great  Harbor,  in  Long  Island,  one  of  the  Bahama  Islands, 
within  the  jurisdiction  of  a  certain  foreign  sovereign,  to  wit, 
the  king  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
the  said  J.  P.  M.,  otherwise  called  J.  M.,  otherwise  called  P.  M., 
then  and  there  being  a  person  belonging  to  the  company  of  the 
said  vessel,  did  then  and  there  receive  and  buy  certain  goods 
and  chattels  that  had  been  feloniouslj^  taken  and  stolen  from  a 
certain  other  person,  to  wit,  the  said  S.  P.  W.,  at  the  district 
aforesaid,  to  wit,  one  quadrant,  of  the  value  of  twenty  dollars, 
one  reflecting  semicircle,  of  the  value  of  twenty  dollars,  twenty- 
four  lunar  tables,  of  the  value  of  twenty-four  dollars,  one  shav- 
ing box  and  glass,  of  the  value  of  five  dollars,  and  one  chart, 
of  the  value  of  one  dollar,  he  the  said  J.  P.  M.,  otherwise  called 
J.  M.,  otherwise  called  P.  M.,  then  and  there  knowing  the  same 
to  be  stolen,  contrary,  etc.,  and  against,  etc.  [Conclude  as  in 
hook  1,  chapter  3.) 

{For final  count.,  see  ante.,  14,  15,  16,  181  n.,  239  n.) 

(422)  Larceny.     Form  in  use  in  New  York. 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  one  leathern  bucket,  of  the 
value  of  three  dollars,  of  the  goods,  chattels,  and  property  of 

395 


(423)  OFFENCES   AGAINST    PROPERTY. 

one  J.  B.,  then  and  there  being  found,  feloniously  did  steal, 
take,  and  carry  away,  to  the  great  damage  of  the  said  J.  B., 
against,  etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(422rt)  Same  in  Maine. 

That  W.  W.  L.  of  A.,  in  the  county  of  A.  and  state  of  M., 
laborer,  on,  etc.,  at,  etc.,  two  oxen,  of  the  value  of  one  hundred 
and  eighty  dollars,  one  horse,  of  the  value  of  one  hundred  dol- 
lars, one  certain  riding  wagon,  of  the  value  of  ninety  dollars, 
and  one  harness,  of  the  value  of  twenty  dollars,  of  the  goods 
and  chattels  of  one  C.  P.  J.,  then  and  there  being  found,  feloni- 
ously did  steal,  take,  and  carry  away,  against  the  peace,  etc.(A) 
{Conclude  as  in  book  1,  chapter  3.) 

(423)  Same  in  Pennsylvania.{i)    • 

That  A.  M.,  late,  etc.,  on,  etc.,  one  mare,  of  the  value  of  one 
hundred  dollars,  of  the  goods  and  chattels  and  property  of  J.  C, 
then  and  there  being  found,  then  and  there  feloniously  did  steal, 
take,  and  carry  away,  contrary,  etc.,  and  against,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

(/()  State  V.  Leavitt,  66  Me.  440.  In  this  case  the  defendant,  before  his  arraign- 
ment, filed  a  special  denun-rer  to  the  indictment,  for  causes  following  :  — 

I.  That  there  is  no  possession  of  the  goods  and  chattels  named  in  said  indict- 
ment, set  forth  therein,  or  that  thpy  were  at  the  time  of  the  alleged  taking  in 
the  possession  of  any  one. 

II.  That  there  is  no  trespass  in  the  taking  and  caiTying  away  set  forth  or  al- 
leged in  said  indictment. 

III.  That  it  is  not  alleged  in  and  by  said  indictment  that  the  articles  of  prop- 
erty therein  alleged  to  be  taken  and  carried  away,  were  ever  in  the  possession  of 
any  one,  and  had  not  been  abandoned  or  lost  by  the  owner ;  and  that  said  indict- 
ment is  in  other  respects  informal  and  insufficient. 

Ajypleton,  C.  J.  "The  indictment  alleges  that  the  defendant  'feloniously  did 
steal,  take,  and  carry  away,  against  the  peace  of  the  state,  and  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,'  certain  described  property 
'  of  the  goods  and  chattels  of  one  Charles  P.  Jordan,  Jr.,'  etc.,  and  the  defend- 
ant by  his  demurrer  admits  that  he  did  so.  This  is  precisely  what  is  forbidden 
by  R.  S.,  c.  120,  §  1,  the  language  of  which  is  followed  in  the  indictment.  I  think 
the  indictment  is  good.  I  should  regret  the  giving  a  sanction  to  what  the  defend- 
ant has  done  by  declaring  it  no  offence.  Wh.  Pr.  417  ;  2  Archbold's  Cr.  Pr.  & 
PI.  343.     The  indictment  is  alike  good  at  common  law  and  by  statute.  " 

(■/)  Com.  f.  ]\I'j\Iickle,  Sup.  Ct.  Pa.,  July  T.  1828,  No.  48.  This  case  went 
up  to  the  supreme  court,  after  conviction  in  the  (juarter  sessions  of  Delaware 
county,  apparently  for  the  purpose  of  testing  the  propriety  of  joining  a  count  i'or 
the  felony  of  larceny,  with  a  count  for  the  misdemeanor  of  receiving  stolen  goods. 
The  judgment  on  the  verdict  was  sustained.  The  form  in  the  text  is  the  one  or- 
dinarily used  in  practice  in  Pennsylvania.  See  also  Com.  v.  Vandyke,  JMarch 
term,  1828,  No.  32,  where  the  same  point  was  ruled. 

396 


LARCENY.  (427) 

(424)  Second  count.     Receiving  stolen  goods. 

That  the  said  A.  M,,  on,  etc.,  at,  etc.,  the  goods  and  chattels 
and  property  aforesaid,  by  some  ill-disposed  persons  (to  the 
jurors  aforesaid  yet  unknown)  then  lately  before  feloniously 
stolen,  taken,  and  carried  away,  unlawfully,  unjustly,  and  for 
the  sake  of  wicked  gain,  did  receive  and  have,  the  said  A.  M., 
then  and  there  well  knowing  the  goods  and  chattels,  moneys, 
and  property  last  mentioned,  to  have  been  feloniously  stolen, 
taken,  and  carried  away,  contrary,  etc.,  and  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(425)  Same  in  Neiu  Jersey. 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  one  hat,  of  the  value  of  one 
dollar,  then  and  there  being  found,  unlawfully  did  steal,  take, 
and  carry  away,  contrary,  etc.,  and  against,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 

(426)  Same  in  South  Carolina. 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  one  woollen  jacket,  of  the 
value  of  two  dollars,  of  the  proper  goods  and  chattels  of  J.  K, 
then  and  there  being  found,  feloniously  did  steal,  take,  and 
carry  away,  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

That  the  said  A.  B.,  on,  etc.,  at,  etc.,  one  other  woollen  jacket, 
of  the  value  of  two  dollars,  of  the  goods  and  chattels  of  a  cer- 
tain person  to  the  jurors  aforesaid  unknown,  then  and  there 
being  found,  feloniously  did  steal,  take,  and  carry  away,  against, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

(427)  Same  in  Michigan. 

That  J.  K.,  etc.,  on,  etc.,  at,  etc.,  one  gelding,  of  the  value  of 
one  hundred  and  twenty-five  dollars,  of  the  goods  and  chattels 
of  one  J.  B.,  then  and  there  being,  feloniously  did  steal,  take, 
and  lead  away;  against,  etc.,  and  against,  etc.  {Conclude  as  in 
book  1,  chapter  3.) 

397 


(429)  OFFENCES   AGAINST    PROPERTY. 

(427a)  Same  in  Indiana. 

That  J.  S.,  on,  etc.,  at,  etc.,  unlawfully  and  feloniously  did 
steal,  take,  and  carry  away,  of  the  personal  goods  and  chattels  of 
one  A.  then  and  there  being,  of  the  value  of  four  dollars,  one 
pair  of  boots,  contrary  to  the  form  of  the  statute,  etc. (J)  {Con- 
clude as  in  book  1,  chapter  3.) 

(4276)  Ijarceny  of  notes  under  Mass.  statute. 

That  J.  S.,  etc.,  on,  etc.,  at,  etc.,  divers  promissory  notes  of 
the  amount  and  of  the  value  in  all  of  five  thousand  dollars,  a 
more  particular  description  of  which  is  to  the  jurors  unknown, 
of  the  property,. goods,  and  chattels  of  one  J.  N.  F.,  in  his  pos- 
session then  and  there  being,  feloniously  did  steal,  take,  and 
carry  away,  eic.{k) 

(428)  Banknote  in  North  Carolina. [l) 

That  T.  B.,  etc.,  on,  etc.,  at,  etc.,  one  twenty  dollar  bank 
note,  issued  by  the  president  and  directors  of  the  Baidv  of 
a  bank  duly  chartered  and  authorized  by  tlie  state  of 
I^orth  Carolina,(?n)  of  the  value  of  twenty  dollars,  of  the 
goods  and  chattels,  moneys,  and  property  of  A.  B.,  then  and 
there  being  found,  then  and  there  feloniously  did  steal,  take, 
and  carry  away,  contrary,  etc.,  and  against,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 

(429)  Bank  note  in  Pennsylvania.{n) 

That  T.  B.,  on,  etc.,  at,  etc  ,  one  promissory  note  for  the  pay- 
ment of  money,  commonly  called  a  bank  note,  purporting  to  be 

(  j)  It  was  held  in  Indiana,  that  while  this  indictment  was  somewhat  transposed 
and  out  of  the  usual  form,  it  substantially  and  sufheiently  charged  a  larceny  of 
the  personal  goods  of  the  party  named.     King  v.  State,  44  Ind.  285. 

(A)   Sustained  in  Com.  v.  Butts,  124  Mass.  449.      See  supra,  pp.  381-4-5. 

(/)  This  form  seems  approved  by  the  court  in  State  v.  Rout,  3  Hawks,  618. 

(m)  Or,  in  another  case,  "a  certain  twenty  dollar  bank  note,  issued  by  the 
president  and  directors  of  the  Bank  of  Newbern."  State  v.  Williamson,  3 
Murph.  216.  It  is  now  proper  to  aver  that  the  note  was  issued  by  the  bank  in 
question,  and  that  the  bank  was  duly  authorized,  etc.  State  v.  Brown,  8  Jones, 
L.  (N.  C),  443  ;  supra,  p.  382. 

(w)  This  form  was  the  one  usually  employed  under  the  old  statutes.  M'Laugh- 
lin  V.  Com.,  4  11.  464  ;  Com.  v.  M'Dowell,  1  Browne,  359  ;  Stewart  v.  Com.,  4 
S.  &  R.  194  ;  Spangler  r.  Com.,  3  Binn.  533.  Under  the  rev.  act  of  1860,  it  is 
sufficient  if  the  common  title  of  a  stolen  document  be  given.     See  supra,  p.  381. 

398 


LARCENY.  (431 «) 

issued  bj  the  {president  and  directors  of  the  bank  of,  etc.,  as  the  case 
may  be),  for  the  payment  of  five  dollars,  being  still  due  and 
unpaid,  of  the  value  of  five  dollars,  of  the  goods  and  chattels, 
moneys,  and  property  of  A.  B.,  then  and  there  being  found, 
then  and  there  feloniously  did  steal,  take,  and  carry  away,  con- 
trary, etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(430)  Bank  note  in  Connecticut.{o) 

That  T.  B.,  '^tc,  on,  etc.,  at,  etc.,  thirteen  bills  against  the 
Hartford  Bank,  each  for  the  payment  and  of  the  value  of  ten 
dollars,  issued  by  such  bank,  being  an  incorporated  bank  in  this 
state,  of  the  value  of  one  hundred  and  thirty  dollars,  of  the 
goods  and  chattels,  moneys,  and  property  of  A.  B.,  then  and 
there  being  found,  then  and  there  feloniously  did  steal,  take, 
and  carry  away,  contrary,  etc.,  and  against,  etc.  {Conclude  as  in 
book  ] ,  chapter  3.) 

(431)  Ba7ik  note  in  Tennessee.{p) 

That  defendant,  on,  etc.,  at,  etc.,  one  bank  note  of  the  Plant- 
ers' Bank  of  Tennessee,  payable  on  demand  at  the  Mechanics' 
and  Traders'  Bank  at  ISTew  Orleans,  of  the  value  and  denomi- 
nation of  five  dollars,  the  bank  note,  personal  goods,  and  chat- 
tels of  J.  B.,  then  and  there  being,  feloniously  did  steal,  take, 
and  carry  away,  against,  etc.,  and  against,  etc.  {Conclude  as  in 
book  1,  chapter  3.) 

(481«)  Stealing  bank  note  in  Iowa. 

That  defendant "did  feloniously  steal,  take, 

and  carry  away  divers  bank  bills,  commonly  known  and 
denominated  national  currency,  of  divers  denominations,  the 
number  and  denomination  of  which  are  to  the  grand  jury  un- 
known, of  the  amount  and  value  of  six  hundred  and  fifty  dol- 
lars, which  said  bank  bills  circulated  and  passed  as  money,  and 
which  were  then  and  there  the  property  and  in  the  possession 
of  one  J.  J.  P.,"  etc.(^)     {Conclude  as  in  book  1,  chapter  3.) 

(o)  This  form  -was  sanctioned  in  Salisbury  v.  State,  6  Conn.  101. 
{p)  State  ('.  Hite,  9  Yerg.  358. 

[q)  Sustained  in  State  c.  Hoppe,  39  Iowa,  4G8.  See  furtlier  as  to  description, 
notes  to  415  ;  supra,  pp.  384  et  seq. 

399 


(432rt)  OFFENCES    AGAINST    PROPERTY, 

(4316)  Stealing  hank  notes  of  unknown  hanks.{r) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  sundry  bank  bills,  of  some 
banks  respectively  to  the  said  jurors  unknown,  of  the  amount 
atid  value  in  all  of  thirty-eight  dollars,  of  the  property,  goods, 
and  chattels  of  one  C.  D.,  in  his  possession  then  and  there 
being,  feloniously  did  steal,  take,  and  carry  away,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(432)  Larceny  in  dicelling-house  in  daytime.     3Iass.  Bev.  Sts.  cL 

126,  §  14.(5) 

That  defendant,  at,  etc.,  on,  etc.,  one  certain  original  book  of 
accounts  concerning  money  due,  of  the  value  of  twenty  dol- 
lars, one  receipt,  release  of  defeasance,  containing  an  acquit- 
tance of  money  due,  of  the  value  of  six  dollars,  and  sundry 
bank  bills,  amounting  together  to  the  sum  of  eleven  dollars, 
and  of  the  value  of  eleven  dollars,  of  the  goods  and  chattels  of 
one  A.  B.,  in  the  dwelling-house  of  one  C.  D.  there  situate,  in 
the  said  A.  B.'s  possession  then  and  there  being,  did  then  and 
there,  in  the  said  dwelling-house  (in  the  daytime),(^)  feloniously 
steal,  take,  and  carry  away,  against,  etc.,  and  contrary,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(432a)  Larceny  in  a  building  in  3Iassachusetts. 

That  (the  defendant),  on,  etc.,  at,  etc.,  certain,  etc.  {describing 
things  taken)^  of  the  property,  goods,  and  moneys  of  J.  G.,  in  a 
certain  building  there  situate,  to  wit,  the  dwelling-house  of  one 
P.  McG.,  and  then  and  there  in  the  possession  of  the  said  J.  G. 
being  found,  feloniously  did  steal,  take,  and  carry  away,  against, 
etc.     {Co7ich(de  as  in  book  1,  chapter  S.){u) 

(?•)  This  -was  sustained  in  Com.  v.  Grimes,  10  Gray,  470. 

(.s)  Com.  V.  AVilliams,  9  Met.  273.  In  this  case  it  was  held,  that  a  memoran- 
dum book,  kept  hy  a  person  who  works  for  a  tailor  by  the  piece,  and  in  which 
entries  are  made  of  the  names  of-  the  persons  owninjj  the  garments  worked  upon, 
and  the  prices  of  the  work,  is  a  "book  of  accounts  for  or  concerning  money  or 
goods  due,  or  to  become  due,  or  to  be  delivered,"  within  the  revised  statutes,  eh. 
126,  §  17,  and  is  the  subject  of  larceny.  And  such  book,  given  by  a  tailor  to  the 
person  who  works  for  him,  for  the  purpose  of  such  entries  being  made  therein,  is 
the  property  of  such  person,  and  not  of  the  tailor. 

(t)  Where  the  larceny  is  in  the  night,  it  falls  within  stat.  1843,  ch.  1,  §  1, 
and  the  averment  in  brackets  is  to  be  left  out,  and  ("in  the  night-time  of  the 
said  day")  inserted  in  its  place.     See  Tr.  &  H.  Prec.  346. 

(w)   Sustained  in  Com.  v.  Smith,  111  Mass.  429. 

400 


LARCENY.  (-135) 

(433)  Breaking  and  entering  a  vessel  in  the  rnghi-time^  and  commit- 
ting a  larceny  therein^  under  Mass.  Rev.  Sts.  ch.  126,  §  ll.(?)) 

That  C.  D.,  etc.,  on,  etc.,  at,  etc.,  a  certain  vessel  of  one  A.  B., 
called  the  "Sally,"  of  Boston,  within  the  body  of  the  said  county 
of  S.  then  and  there  lying  and  being,  in  the  night-time  of  the 
said  day,  did  break  and  enter,  and  one  trunk,  of  the  value  of 
five  dollars,  and  {ketr  state  the  kind  and  value  of  each  article},  of 
the  goods  and  chattels  of  one  E.  F.,  in  the  trunk  aforesaid  then 
and  there  contained,  and  in  the  vessel  aforesaid  then  and  there 
being  found,  in  the  night-time  of  the  said  day,  feloniously  did 
steal,  take,  and  carry  away,  in  the  vessel  aforesaid,  against,  etc., 
and  contrary,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(434)  Breaking  and  entering  a  shop  in  the  night.,  and  committing  a 
larceny  therein^  under  Mass.  Rev.  Sts.  ch.  126,  §  ll.{w) 

That  C.  D.,  etc.,  on,  etc.,  at,  etc.,  the  shop  of  one  A.  B.,  there 
situate,  in  the  night-time  of  the  same  day,  did  break  and  enter, 
and  sundry  bank  bills,  amounting  together  to  the  sum  of  one 
hundred  dollars,  and  of  the  value  of  one  hundred  dollars,  and 
{here  insert  all  the  articles  stolen,  alleging  the  kind,  number,  and 
value  of  each),  of  the  goods  and  chattels  of  the  said  A.  B.,  then 
and  there  in  the  shop  aforesaid  being  found,  feloniously  did  steal, 
take,  and  carry  away,  in  the  shop  aforesaid,  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(435)  Larceny  by  the  cashier  of  a  bank.     Mass.  Stat.  1846,  ch.  171, 

§  l.(^) 

That  A.  B.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 

of  our  Lord  at  D.,  in  the  county  of  N.,  the  said  A.  B., 

then  and  there  being  an  ofiicer,  to  wit,  the  cashier,  of  the  Ded- 

ham  Bank,  a  corporation  then  and  there  duly  and  legally  estab- 

(?;)  Davis's  Prec.  143. 

\w)  See  Tr.  &  H.  Prec.  344  ;  Davis's  Prec.  142.  The  coupling  in  this  form 
of  the  "breaking  and  entering"  with  the  Larceny,  is  not  duplicity.  Com.  v. 
Tuck,  20  Pick.  3.56.  It  was  first  held  essential,  however,  that  the  averment  in 
brackets,  which  was  omitted  by  Mr.  Davis,  should  be  inserted;  lb.;  but  the 
court  since  appears  to  have  settled  into  a  contrary  doctrine.  Devoc  v.  Com.,  3 
Met.  316;  Phillips  w.  Com.,  lb.  588.  This  indictment,  it  is  intimated  in  the 
latter  case,  would  be  good  under  Revised  Statutes,  ch.  126,  §  11. 

(x)  Tr.  &  H.  Prec.  341. 

VOL.  I.— 26  401 


(437)  OFFENCES    AGAINST    PROPERTY. 

lished,  organized,  and  existing  under  and  by  virtue  of  the  laws 
of  this  commonwealth,  as  an  incorporated  bank,  did  feloniously 
and  fraudently  convert  to  the  said  A.  B.'s  own  use  certain 
money,  to  a  certain  large  amount,  to  wit,  to  the  amount  and  sum 
of  one  hundred  thousand  dollars,  and  of  the  value  of  one  hun- 
dred thousand  dollars,  of  the  property  and  moneys  of  the  said 
president,  directors,  and  company  of  the  Dedham  Bank,  being 
in  their  banking-house  there  situate:  whereby  and  by  force  of 
the  statute  in  such  case  made  and  provided,  the  said  A.  B.  is 
deemed  to  have  committed  the  crime  of  larceny  in  said  bank. 
And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say 
that  the  said  A.  B.,  then  and  there,  in  manner  and  form  afore- 
said, the  aforesaid  money,  of  the  property  and  moneys  of  the 
said  president,  directors,  and  company  of  the  Dedham  Bank, 
feloniously  did  steal,  take,  and  carry  away,  in  the  banking-house 
aforesaid  ;  against,  etc.,  and  contrary,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(436)  Breom'dng  and  entering  a  stable  in  the  night-time,  and  commit- 
ting a  larceny  therein.     Mass.  Stat.  1851,  ch.  156,  §  l.(?/) 

That  C.  D.,  late  of,  etc.,  laborer,  on  the  first  day  of  June,  in 
the  year  of  our  Lord  with  force  and  arms,  at  B.  aforesaid, 

in  the  county  aforesaid,  a  certain  building,  to  wit,  the  stable,  of 
one  E.  F.,  there  situate,  in  the  night-time  of  said  day,  feloni- 
ously did  break  and  enter,  and  one  chaise,  of  the  value  of  one 
hundred  dollars,  one  saddle,  of  the  value  often  dollars,  and  one 
bridle,  of  the  value  of  five  dollars,  of  the  goods  and  chattels  of 
the  said  E.  F.,  then  and  there  in  the  stable  aforesaid  being  found, 
then  and  there,  in  the  night-time,  feloniously  did  steal,  take, 
and  carry  away,  in  the  stable  aforesaid  ;  against,  etc.,  and  con- 
trary, etc.     {Conclude  as  in  book  1,  chapter  3.) 

(437)  Breaking  and  entering  a  shop  in  the  night-time,  adjoining  to  a 

dwelling-house,  with  intent  to  commit  the  crime  of  larceny,  and 
actually  stealing  therein.    Mass.  Stat.  1839,  ch.  Zl.{z) 

That  Joseph  H.  Josslyn,  late  of,  etc.,  on  the  first  day  of  Feb- 
ruary, in  the  year  of  our  Lord  with  force  and  arms,  at 

[y)  Tr.  &  H.  Prec.  342.  (2)  Tr.  &  H.  Free.  343. 

402 


LARCENY.  (438) 

Waltham,  in  the  county  of  Middlesex,  the  shop  of  one  Charles 
W.  Fogg,  there  situate,  adjoining  to  a  certain  d\velling-house,(a) 
in  the  night-time,  did  break  and  enter,  with  intent  the  goods 
and  chattels  of  said  Fogg,  then  and  there  in  said  shop  being 
found,  feloniously  to  steal,  take,  and  carry  away  ;(6)  and  one  Eng- 
lish gold  lever  watch,  of  the  value  of  one  hundred  dollars,  and 
one  gold  Lepine  watch,  of  the  value  of  one  hundred  dollars, 
nine  old  silver  watches,  each  of  the  value  of  ten  dollars, (c)  of 
the  goods  and  chattels  of  the  said  Charles  W.  Fogg,  then  and 
there  in  the  shop  of  the  said  Fogg  being  found,  then  and  there, 
in  the  night-time,  feloniously  did  steal,  take,  and  carry  away, 
in  the  shop  aforesaid;  against  the  peace  of  said  commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

(488)  Entering  a  dicelling-house  in  the  night-time,  without  breaking, 
some  persons  being  therein,  and  being  imt  in  fear.  31ass.  Rev. 
Sts.  ch.  126,  §  Vl.{tl) 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  with  force  and  arms,  at  D.,  in  the  county  of 

IS".,  the  dwelling-house  of  A.  B.,  there  situate,  in  the  night-time 
of  said  day,  feloniously  did  enter,  without  breaking  the  same, 
with  intent  then  and  therein  to  commit  the  crime  of  larceny  ; 
one  A.  B.,  and  M.,  his  wife,  then,  to  wit,  at  the  time  of  the  com- 
mitting of  the  felony  aforesaid,  lawfully  being  in  the  said  dwell- 
ing-house, and  by  the  said  C.  D.  were  then  and  there  [)Ut  in  fear ; 
against,  etc.,  and  contrary,  etc.     {Conclude  as  in  book  1,  cliapter  3.) 

(a)  It  is  not  necessary  to  aver  that  the  shop  was  or  was  not  "adjoining  to  a 
dwelling-house."  Larned  ?.'.  Com.,  12  Mete.  240;  Devoe  u.  Com.,  3  ^letc. 
316.  See  Com.  v.  Tuck,  20  Pickering,  366;  R.  v.  Marshall,  1  Moody,  C.  C. 
158. 

{h)  This,  say  Tr.  &  Heard,  is  a  sufficient  averment.  The  words  of  the  Stat. 
1839,  ch.  31,  are,  "with  intent  to  commit  the  crime  of  larceny."  But  it  is  not 
necessary  to  aver  the  intent  in  tlie  words  of  the  statute.  Josslyn  v.  Com.,  6 
Mete.  236. 

(c)  Where  an  indictment  for  breaking  and  entering  a  building,  with  intent  to 
steal  therein,  is  correctly  framed,  an  additional  charge,  that  the  dei'endant  com- 
mitted a  larceny  therein,  though  defective,  and  such  as  would  not  of  itself  be  a 
sufficient  indictment  for  larceny,  is  no  cause  for  reversing  a  judgment  rendered 
on  a  general  verdict  of  guilty.     Larned  v.  Com.,  12  Mete.  240. 

(^  Tr.  &  H.  Free.  345. 

403 


(440)  OFFENCES  AGAINST  PROPERTY, 

(439)  Breaking  and  entering  a  (hvelling-house  in  the  daytime,  the 

oioner  being  therein^  and  being  put  in  fear.     Mass.  Hev.  Sts. 
ch.  126,  §  12.(g) 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  with  force  and  arms,  at  D.,  in  the  county  of 

N.,  the  dwelling-house  of  one  A.  B.,  there  situate,  in  the  day- 
time, feloniously  did  break  and  enter,  with  intent  then  and  there- 
in to  commit  the  crime  of  larceny ;  the  said  A.  B.,  and  M,,  his 
wife,  then,  to  wit,  at  the  time  of  the  committing  of  the  felony 
aforesaid,  lawfully  being  in  said  dwelling-house,  and  by  the  said 
C.  D,  were  then  and  there  put  in  fear;  against,  etc.,  and  con- 
trary, etc.     {Conclude  as  in  book  1,  chapter  3.) 

(440)  Breaking  and  entering  a  city  hall,  and  stealing  therein,  in  the 

night-time.     Mass.  Rev.  Sts.  ch.  123,  §  14.(/) 

That  John  Williams,  late  of,  etc.,  on  the  twelfth  day  of  No- 
vember, in  the  year  of  our  Lord  with  force  and  arms,  at 
Charlestown,  in  the  county  of  Middlesex  aforesaid,  the  city  hall 
of  the  city  of  Charlestown,  in  said  county,  there  situate,  and 
erected  for  public  uses,  to  wit,  the  transaction  of  the  municipal 
business  of  said  city  of  Charlestown,  in  the  night-time  of  the 
said  day,  feloniously  did  break  and  enter,  and  ten  pieces  of  gold 
coin,  current  within  this  commonwealth  by  the  laws  and  usages 
thereof,  called  eagles,  of  the  value  of  ten  dollars  each,  ten  other 
pieces  of  gold  coin,  current  within  this  commonwealth  by  the 
laws  and  usages  thereof,  called  sovereigns,  of  the  value  of  five 
dollars  each,  of  the  goods  and  chattels  and  moneys  of  the  said 
city  of  Charlestown,  then  and  there  in  the  city  hall  aforesaid 
being  found,  then  and  there,  in  the  night-time,  feloniously  did 
steal,  take,  and  carry  away,  in  the  city  hall  aforesaid,  against, 
etc.,  and  contrary,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(e)  Tr.  &  H.  Tree.  345. 

( /")  Tr.  &  H.  Preo.  347.  In  an  indictment  under  this  section  of  the  statute, 
for  breaking  and  entering  in  any  of  the  buiklings  therein  mentioned,  the  amount 
or  value  of  the  property  stolen  is  immaterial.  And  it  is  a  suflicient  allegation  as 
to  the  stealing,  if  there  is  a  larceny  properly  and  technically  charged  of  any  of 
the  goods  alleged  in  the  indictment  to  be  stolen.  Com.  v.  Williams,  2  Gushing, 
582. 

404 


LARCENY.  (443) 

(441)  Stealing  in  a  building  that  is  on  fire.     31ass.  Bev.  Sts.  ch.  126, 

§  15.(i/) 

That  C.  D.,  late  of,  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  at  S.,  in  the  county  of  E.,  with   force  and 

arms,  one  gold  watch,  of  the  value  of  one  hundred  dollars,  one 
gold  ring,  of  the  value  of  ten  dollars,  and  one  gold  bracelet,  of 
the  value  of  twenty  dollars,  of  the  goods  and  chattels  of  one  E. 
F.,  in  a  certain  building,  to  wit,  the  dwelling-house  of  the  said 
E.  F.,  there  situate,  then  and  there  being,  which  said  dwelling- 
house  was  then  and  there  on  tire,  then  and  there  feloniously 
did  steal,  take,  and  carry  away,  in  the  dwelling-house  aforesaid, 
against,  etc.,  and  contrary,  etc.     ^Conclude  as  in  book  1,  chapte?^ 3.) 

(442)  Larceny  from  the  person.     Rev.  Sts.  of  Mass.  ch.  126,  §  16. (A) 

That  C.  D.,  late  of  L.,  in  the  county  of  M.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms,  at  L.,  in  the  county  of  M.,  one  gold  watch,  of  the  value  of 
one  hundred  dollars,  of  the  goods  and  chattels  of  one  E.  F.,  then 
and  there,  from  the  person  of  the  said  E.  F.,  feloniously  did  steal, 
take,  and  carry  awaj',  against,  etc.,  and  contrary,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

(443)  Larceny  of  real  property.     Mass.  Sts.  1851,  ch.  151. (i) 

That  C.  D.,  late   of  C,  in  the  county  of  M.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms,  at  C,  in  the  county  of  M.,  fifty  pounds  weight  of  lead, 
each  of  the  value  of  ten  cents,  of  the  property  of  one  A.  B.,  and 
against  the  will  of  the  said  A.  B.,  then  and  there  being  parcel  of 
the  realty,  to  wit,  of  the  dwelling-house  of  the  said  A.  B.,  there 
situate,  wilfully  and  maliciously  did  rip,  cut,  and  break,  and  then 
and  there  did  take  and  carry  away  the  same,  with  intent  then 
and  there  the  same  feloniously  to  steal,  take,  and  carry  away ; 
whereby  and  by  force  of  the  statute  in  such  case  made  and  pro- 
vided, the  said  C.  D.  is  guilty  of  the  crime  of  simple  larceny. 

(g)  Tr.  &  H.  Prec.  348. 

(h)  Tr.   &  H.  Free.  349.     See  Com.  v.  Dimond,  3  Gushing,  235 ;  Com.  u. 
Eastman,  2  Grav. 

(t)   Tr.  &  H.'Prec.  349. 

405 


(444)  OFFENCES  AGAINST  PROPERTY. 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  C.  D.,  then  and  there,  in  manner  and  form  afore- 
said, the  lead  aforesaid,  of  the  property  of  the  said  A.  B.,  fehv 
niously  did  steal,  take,  and  carry  away,  against, etc.,  and  contrary, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

(443«)  Stealing  and  i^eceiving goods  stolen  in  warehouse^under  Mass. 

statute. 

And  the  jurors  aforesaid,  for,  etc.,  on  their  oath  aforesaid,  do 
further  present,  that  L.  M.  and  J.  II.,  otherwise  called  F.  II.,  of 
B.  aforesaid,  on,  etc.,  at,  etc.,  with  force  and  arms,  two  thou- 
sand pairs  of  stockings,  each  pair  of  the  value  of  one  dollar,  of 
the  property,  moneys,  goods,  and  chattels  of  one  G.  F.  II.,  in  a 
certain  building  there  situated,  to  wit,  the  warehouse  of  the  said 
H.  and  in  his  possession  then  and  there  being,  did  then  and  there 
in  the  said  building,  feloniously  steal,  take,  and  carry  away, 
against  the  peace,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

And  the  jurors  aforesaid,  for,  etc.,  on  their  oath  aforesaid,  do 
further  present,  that  J.  C,  of  B.  aforesaid,  on,  etc.,  at,  etc.,  with 
force  and  arms,  the  property,  goods,  and  chattels  aforesaid,  so  as 
aforesaid  stolen,  taken,  and  carried  away,  feloniously  did  buy, 
have,  receive,  and  aid  in  concealment  of;  he,  the  said  C,  then 
and  there  well  knowing  the  said  property,  goods,  and  chattels 
to  have  been  feloniously  stolen  as  aforesaid  ;  against  the  peace, 
etc.(y)     {Conclude  as  in  book  1,  chapter  3.) 

(444)  Larceny  and  embezzlement  of  public  property^  on  the  statute  of 
the  United  States  of  the  30^A  April,  17b0,  §  26.(A-) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  being  a  person  having  the 
charge  and  custody  of  certain  arms  and  other  ordnance  and 
munitions  of  war  belonging  to  the  United  States,  certain  arms, 
to  wit,  ten  muskets,(/)  of  the  value  of  one  hundred  dollars,  of 
the  property',  goods,  and  chattels  of  the  said  United  States, 
furnished  and  intended  for  the  military  service  thereof,  in  the 

(/)  Sustained  in  Com.  v.  Cohen,  120  Mass.  198. 

(k)  Davis's  Free.  149.  Gordon's  Digest,  art.  3641,  p.  714.  See  post,  460, 
et  seq. 

(/)  The  same  form  is  to  be  adopted  as  to  all  the  other  articles  and  property 
enumerated  in  the  statute. 

406 


LARCENY.  (445A) 

charge  and  custody  of  the  said  A.  B,  then  and  there  being,  did 
embezzle,  steal,(?/()  purloin,  and  knowingly  and  wilfully  misap- 
propriate, and  sell  and  dispose  of,  against,  etc.,  and  contrary, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

(445)  Stealing,  destroying,  or  concealing  idHI,  under  statute  24  and 

25   Viet. 

{Commencement  as  in  prior  forms) — a  certain  will  and  testa- 
mentary instrument  of  one  J.  IST.  feloniously  did  steal,  take,  and 
carry  away  {or  feloniously  and  for  a  fraudulent  purpose  did 
conceal,  destroy,  obliterate,  or  did  conceal),  against,  etc.{n)  {Con- 
clude as  in  book  1,  chapter  3.) 

(445a)  Stealing  documents  of  title  to  real  estate,  under  statute  24  and 

25  Vict. 

{Commencement  as  in  prior  forms) — a  certain  deed,  the  property 
of  J.  ]^,,  being  {or  containing)  evidence  of  the  title  {or  of  part 
of  the  title)  of  the  said  J.  N.  to  a  certain  real  estate  (or,  to  part 
of  a  certain  real  estate)  called  Whiteacre,  in  which  said  real 
estate  the  said  J.  IS.  then  had,  and  still  hath,  an  interest,  felo- 
niously did  steal,  take,  and  carry  away  {or,  feloniously  and  un- 
lawfully, and  for  a  fraudulent  purpose  did  destroy;  '■''destroy, 
obliterate,  or  concear'),  against,  etc.(o)  {Conclude  as  in  book  1,  chap- 
ter 3.) 

(4456)  Stealing  valuable  securities,  under  24  and  25  Vict. 

{Commencement  as  in  prior  forms) — a  certain  valuable  security, 
other  than  a  document  of  title  to  lands,  to  wit,  one  bill  of  ex- 
change, for  the  payment  of  ten  pounds,  the  property  of  J.  iST., 
the  said  sum  of  ten  pounds,  secured  and  payable  by  and  upon 
the  said  bill  of  exchange,  being  then  due  and  unsatistied  to  the 
said  J.  N.,  feloniously  did  steal,  take,  and  carry  away,  against, 
etc.(p)    {Conclude  as  in  book  1,  chapter  3.) 

(m)  In  the  original  section  of  the  statute  on  which  this  form  was  drawn,  the 
word  purloin  is  used  in  the  former  part,  and  the  word  stolen  in  tlie  hitter  part 
for  the  same  purpose.  The  form  in  the  text  is  adapted  to  Rev.  Stat.,  tit.  xiv. 
art.  60. 

(n)  Arch.  C.  P.  19th  ed.  p.  393,  citing  R.  v.  Morris,  9  C.  &  P.  89. 

(r>)    Arch.  C.  P.  19th  ed.  p.  394. 

\p)  Arch.  C.  P.  19th  ed.  p.  408;  citing  R.  v.  Lowrie,  L.  R.  1  C.  C.  R.  61. 

407 


(445(i)  OFFENCES  AGAINST  PROPERTY. 

(445c)  Stealing  lead,  etc.,  under  24  and  25  Vict. 

(Commencement  as  in  jpnor  forms) — sixty  pounds'  weight  of 
lead,  the  property  of  J.  N.,  then  being  fixed  to  the  dwelling- 
house  (describing  huilding  so  as  to  meet  statute)  of  the  said  J.  N., 
situate  in,  etc.,  feloniously  did  steal,  take,  and  carry  away  {or, 
feloniously  did  rip,  cut,  sever,  and  hY&oik,  following  statute,  with 
intent  the  same  feloniously  to  steal,  take,  and  carry  away), 
against,  etc.(5')     {Conclude  as  in  book  1,  chapter  3.) 

(4456?)  Stecding  or  cutting  trees,  etc.,  with  intent  to  steal,  \inder 
24  and  25  Vict. 

{Commencement  as  in  prior  forms) — one  ash-tree  {describing  so 
as  to  meet  statute),  of  the  value  of  six  pounds,  the  property  of 
J.  N.,  then  growing  in  a  certain  close  {folloidng  statute)  of  the 
said  J.  N.  situate,  etc.,  in  the  said  close,  feloniously  did  steal, 
take,  and  carry  away  {or,  feloniously  did  cut,  taking  either  alter- 
native of  the  statute,  with  intent  the  same  feloniously  to  steal, 
take,  and  carry  away;  thereby  then  doing  injury  to  the  said  J. 
!I\r.  to  an  amount  exceeding  the  sum  of  five  pounds,  to  wit,  to 
the  amount  of  six  pounds),  against,  etc.(r)  {Conclude  as  in  book  1, 
chapter  3.) 

(9)  Arch.  C.  p.  19th  ed.  p.  405.     That  venue  must  be  in  place  of  offence, 
see  K.  V.  Miller,  7  C.  &  P.  665. 
(r)  Arch.  C.  P.  19th  ed.  p.  399. 

408 


RECEIVING    STOLEN    GOODS.  (-i^^) 


*  CHAPTER  YI. 

RECEIVING  STOLEN  GOODS. («) 

(450)  General  frame  of  indictment. 

(452)  Against  receiver  of  stolen  goods.     Mass.  Rev.  Sts.  cli.  12G,  §  20. 

(453)  Same  in  New  York. 

(454)  Same  in  Pennsylvania. 

(455)  Against  a  receiver  of  embezzled  property.    Mass.  Stat.,  1853,  ch.  184. 

(456)  Receiving  stolen  goods  from  some  unknown  person,  in  Pennsylvania. 

(457)  Same  in  South  Carolina. 

(458)  Same  in  Tennessee. 

(459)  Soliciting  a  servant  to  steal,  and  receiving  the  stolen  goods. 
(459a)  Receiving  and  concealing,  under  Indiana  statute. 

(450)  General  frame  of  indictn/ifi.nt.{b) 

That  A.  B.,  in  the  county  aforesaid,  one  silver  tankard,  of 
the  value  of  two  pounds,  of  the  goods  and  chattels((?)  of  one  J. 
M.,  before  then  feloniously  stolen, ((Z)  taken,  and  carried  away, 

(a)  For  offence  generally,  see  Wh.  Cr.  L.  8th  ed.  §  942. 

(h)  This  offence,  so  far  as  it  may  be  considered  as  a  corollary  of  larceny,  is 
treated  of,  supra,  415,  note.  The  form  in  the  text,  with  the  accompanying 
notes,  though  based  on  the  English  statute,  is  useful  for  reference  generally ; 
that  statute  having  been  substantially  re-enacted  throughout  the  Union. 

(c)  A  variance  in  this  particular  will  be  fatal.  Wh.  Cr.  L.  8th  ed.  §  1002  ; 
People  11.  Wiley,  3  Hill,  N.  Y.  R.  194.  If,  however,  a's  in  larceny,  the  crime 
be  established  in  respect  to  only  a  single  article,  tliough  the  indictment  describe 
several,  the  defendant  may  be  convicted.  Thus  where,  on  the  trial  of  an  indict- 
ment which  misdescribed  a  part  of  the  goods,  but  contained  a  sufficient  descrip- 
tion of  the  residue,  the  jury  were  instructed  by  the  court  below  that  there  was 
no  misdescription  whatever,  and  a  general  verdict  of  guilty  was  rendered :  it 
was  held  on  review  that  the  erroneous  instruction  constituted  no  ground  for  a  new 
trial,  inasmuch  as  it  appeared  by  the  bill  of  exceptions  that  the  question  of  the 
defendant's  guilt  was  identical  in  respect  to  the  whole  of  the  goods,  he  having 
received  them,  if  at  all,  from  the  same  person  by  a  single  act.  People  v.  Wiley, 
3  Hill,  N.  Y.  R.  194. 

[d)  The  indictment  need  not  give  the  name  of  the  principal  felon.  R.  r. 
Jervis,  6  C.  &  P.  156  ;  R.  v.  Wheeler,  7  C.  &  P.  170;  R.  v.  Pulliam,  9  C.  & 
P.  280;  Com.  v.  State,  11  Gray,  60;  People  v.  Caswell,  21  Wend.  8G  ;  Schried- 
leyy.  State,  23  Oh.  St.  130;  Swaggerty  c.  State,  9  Yerg.  338;  State  v.  Smith, 
37  Mo.  58.  It  is  not  essential  in  such  case  to  aver  that  the  principal  felon  or 
thief  had  been  convicted.     lb.     But  in  some  jurisdictions  the  name  of  the  thief 

409 


(452)  OFFENCES  AGAINST  PROPERTY. 

(feloniously)(e)  did  receive  and   have  (he  the  said  A.  B.  then 
and  there  well  knovving(/)  the  said  snoods  and  chattels  to  have 
been   feloniously  stolen,  taken,  and   carried  avvay),(^)  against, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 
{For  form  in  U.  S.  courts,  see  ante,  421.) 

(452)  Against  receiver  of  stolen  goods.     Mass.  Rev.  Sts.  ch.  126, 

§  20. 

That  C.  D.,  late,  etc.,  on,  etc.,  at,  etc.  (one  hat,  of  the  value, 
etc.,  here  enumerate  the  articles,  and  the  value  of  each),  of  the 
goods  and  chattels  of  one  E.  F.,  then  and  there  in  the  possession 
of  the  said  E.  F.  being  found,  feloniously  did  steal,  take,(A)  and 
carry  away;  against  the  peace  of  said  commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  G.  H.,  late  of,  etc.,  laborer,  afterwards,  to  wit,  on 
the  first  day  of  July,  in  the  year  of  our  Lord  with  force 

and  arms,  at  B.  aforesaid,  in  the  county  aforesaid,  the  goods 
and  chattels  aforesaid,  so  as  aforesaid  feloniously  stolen,  taken, 
and  carried  away,  feloniously  did  receive  and  have,  and  did 
then  and  there  aid  in  the  concealment  of  the  same,  the  said  G. 
H.  then  and  there  well  knowing  the  said  goods  and  chattels  to 
have  been  feloniously  stolen,  taken,  and  carried  away;  against, 
etc.,  and  contrary,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

is  averred ;  and  it  may  be  prudent  to  insert  it  if  known,  or  to  allege  it  to  be  un- 
known. Wh.  Cr.  L.  8th  ed.  §  997.  When  tlie  indictment  states  the  larceny  to 
have  been  committed  by  some  persons  to  the  jurors  unknown,  it  is  no  objection 
that  tlie  grand  jury  at  the  same  assizes  find  a  bill  for  the  principal  felony, 
against  J.  S.  R.  i'.  Bush,  11.  &  R.  372.  An  indictment  charging  that  a  certain 
evil-disposed  person  feloniously  stole  cei-tain  goods,  and  that  C.  D.  and  E.  F. 
feloniously  received  the  said  goods,  knowing  them  to  be  stolen,  was  held  good 
against  the  receivers,  as  for  a  substantive  felony.  R.  v.  Caspar,  2  Mood,  C.  C. 
101  ;   9  C.  &  P.  289. 

The  time  and  place,  when  and  where  the  goods  were  stolen,  need  not  be  stated 
in  the  indictment.     State  v.  Holford,  2  Blackf.  103  ;   1  Leach,  109,  47  7. 

(e)  Of  course  where  tlie  offence  is  a  misdemeanor,  as  in  Pennsylvania,  the 
word  "feloniously"  must  be  omitted. 

(/)  This  is  essential.  AVh.  Cr.  L.  §  164;  R.  v.  Larkin,  Dears.  365  ;  6  Cox 
C.  C.  377.     See  for  other  cases  Wh.  Cr.  L.  8th  ed.  §  999. 

((/)  "Taken  and  carried  away"  are  not  necessary  when  "stolen"  is  used. 
Com.  V.  Lakeman,  5  (iray,  82. 

(h)  See  Com.  v.  Lakeman,  5  Gray,  82. 

410 


RECEIVING  STOLEN  GOODS.  (455) 

(453)  Same  in  New  York. 

That  0.  M.  H.,  etc.,  at,  etc.,  on,  etc.,  one  mare,  of  the  value 
of  eighty  dollars,  of  the  goods  and  chattels  of  one  B.  M.,  by  a 
certain  ill-disposed  person,  feloniously  did  receive  and  have,  he 
the  said  0.  M.  H.  then  and  there  well  knowing  the  said  goods 
and  chattels  to  have  been  feloniously  stolen,  taken,  carried,  and 
led  away,  to  the  great  damage,  etc.(i)  {Conclude  as  in  book  1, 
chapter  3.) 

(454)  Same  in  Pennsylvania. 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  one  hat,  of  the  value  of  five 
dollars,  of  the  goods  and  chattels,  moneys,  and  property  of  E. 
F.,  by  C.  D.  then  lately  before  feloniously  stolen,  taken,  and  car- 
ried away,  unlawfully,  unjustly,  and  for  the  sake  of  wicked  gain 
did  receive  and  have  (the  said  A.  B.  then  and  there  well  know- 
ing the  goods  and  chattels,  moneys,  and  property  aforesaid,  to 
have  been  feloniously  stolen,  taken,  and  carried  away),  contrary, 
etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(455)  Against  a  receiver  of  embezzled  property.     Mass.  Stat.  1853, 

ch.  184.(J) 

That  C.  D.,  late  of  F.,  in  the  county  of  M.,  trader,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  F.  aforesaid,  in 

the  county  aforesaid,  being  then  and  there  employed  as  clerk  of 
one  J.  N.,  the  said  C.  D.  not  being  then  and  there  an  apprentice 
to  the  said  J.  N.,  nor  a  person  under  the  age  of  sixteen  years, 
did,  by  virtue  of  his  said  employment,  then  and  there,  and 
whilst  he  was  so  employed  as  aforesaid,  take  into  his  possession 
certain  money,  to  a  large  amount,  to  wit,  to  the  amount  of  fifty 
dollars,  of  the  moneys  of  the  said  J.  N.,  his  employer,  and  the 
said  money  then  and  there  feloniously  did  embezzle  and  fraudu- 
lently convert  to  his  own  use,  without  the  consent  of  the  said 
J.  N. ;  whereby,  and  by  force  of  the  statute  in  such  case  made 
and  provided,  the  said  G.  D.  is  deemed  to  have  committed  the 
crime  of  simple  larceny.     And  the  jurors  aforesaid,  upon  their 

(0  Hopkins  r.  People,  12  "Wend.  76.     It  is  not  necessary  to  allege  that  any 
consideration  passed  between  the  receiver  and  the  thief. 
{j)  Tr.  &  H.  Prec.  450. 

411 


(457)  OFFENCES    AGAINST    PROPERTY. 

oath  aforesaid,  do  further  present,  that  the  said  C.  D.  then  and 
there,  in  manner  and  form  aforesaid,  the  said  money,  the  property 
of  the  said  J.  N.,  his  said  employer,  from  the  said  J.  N.  feloni- 
ously did  steal,  take,  and  carry  away  ;  against  the  peace  of  said 
commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided.  And  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  further  present,  that  G.  H.,  late  of  F.,  in  the 
county  aforesaid,  laborer,  afterwards,  to  wit,  on  the  first  day  of 
July,  in  the  year  of  our  Lord  at  F.  aforesaid,  in  the  county 

aforesaid,  the  money  aforesaid,  so  as  aforesaid  feloniously  em- 
bezzled, feloniously  did  receive  and  have,  and  did  then  and 
there  aid  in  concealing  the  same,  the  said  G.  H.  then  and  there 
well  knowing  the  said  money  to  have  been  embezzled  as  afore- 
said; against,  etc.,  and  contrary,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(456)  Receiving  stolen  goods  from  some  unknown  ijerson^  in 
Pennsylva7iia.{k) 

That  M.  J.,  late  of  the  said  county,  spinster,  being  a  person 
of  evil  name  and  fame,  and  of  dishonest  conversation,  and  a 
common  buyer  and  receiver  of  stolen  goods,  on,  etc.,  at,  etc., 
one  hundred  yards  of  fine  thread  lace,  of  the  value  of  twenty- 
five  pounds,  of  the  goods  and  chattels  of  J.  S.,  by  a  certain  ill- 
disposed  person  to  the  jurors  aforesaid  yet  unknown  then  lately 
before  feloniously  stolen,  of  the  same  ill-disposed  person,  unlaw- 
fully, unjustly,  and  for  the  sake  of  wicked  gain,  did  receive  and 
have,  she  the  said  M.  J.  then  and  there  well  knowing  the  said 
goods  and  chattels  to  have  been  feloniously  stolen,  to  the  great 
damage  of  the  said  J.  S.,  contrary,  etc.,  and  against,  etc.  {Con- 
clude as  in  hook  1,  chapter  3.) 

(457)  Same  in  South  Carolina. 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  one  tin  kettle,  of  the  value  of 
one  dollar,  of  the  proper  goods  and  chattels  of  E.  F.,  by  C.  T>. 
then  lately  before  feloniously  stolen,  taken,  and  carried  away,  of 
and  from  the  said  C.  D.,  unlawfully,  unjustly,  and  for  the  sake 
of  wicked  gain,  did  buy  and  receive,  the  said  A.  B.  then  and 

{k)  Drawn  by  AVm.  Bradford,  Esq.,  at  the  time  attorney-general  of  the 
commonwealth. 

412 


RECEIVING  STOLEN  GOODS.  (459) 

there  well  knowing  the  aforesaid  goods  and  chattels  to  have  been 
feloniously  stolen,  taken,  and  carried  away;  against,  etc.,  and 
against,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

Second  count. 

That  the  said  A.  B.,  on,  etc.,  at,  etc.,  one  other  tin  kettle,  of  the 
value  of  one  dollar,  of  the  proper  goods  and  chattels  of  the  said 
E.  F.,  by  a  certain  evil  disposed  person,  to  the  jurors  aforesaid 
unknown,  then  lately  before  feloniously  stolen,  taken,  and  car- 
ried away,  of  and  from  the  said  evil  disposed  person,  unlaw- 
fully, unjustly,  and  for  the  sake  of  wicked  gain,  did  buy  and 
receive,  the  said  A.  B.  then  and  there  well  knowing  the  afore- 
said goods  and  chattels  to  have  been  felonious!}^  stolen,  taken, 
and  carried  away  ;  against,  etc.,  and  against,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 

(458)  Sajne  in  Tennessee.il) 

That  S.  D.  S.,  etc.,  on,  etc.,  at,  etc.,  two  sides  of  upper  leather, 
of  the  value  of  five  dollars,  of  the  goods  and  chattels  of  one  M. 
H.  B.,  then  lately  before  feloniously  and  fraudulently  stolen,  did 
then  and  there  receive  and  have,  he  the  said  S.  then  and  there 
well  knowing  the  said  goods  and  chattels  to  have  been  feloni- 
ously and  fraudulently  stolen,  taken^  and  carried  away,  with 
intent  to  deprive  the  true  owner  thereof,(m)  contrary,  etc.,  and 
against,  etc.     {Co7iclude  as  in  book  1,  chapter  3.) 

(459)  Soliciting  a  servant  to  steal  and  7xceiving  the  stolen  goods.{n) 

That  E.  D.,  etc.,  on,  etc.,  at,  etc.,  falsely,  subtly,  and  unlawfully 
did  solicit,  entice,  and  persuade  one  M.  P.,  servant  of  W.  S.,  of 
the  same  county,  yeoman,  secretly  and  clandestinely  to  take  and 
embezzle  divers  goods  and  chattels  of  the  said  W.  S.,  and  to 
give  and  deliver  such  goods  and  chattels  to  her  the  said  E.,  and 
that  the  said  E.  afterwards,  the  said  third  day  of  May,  in  the 
year  aforesaid,  at  the  county  aforesaid,  two  pounds  of  coffee,  one 
quarter  of  a  pound  of  candles,  one  pound  of  soap,  ten  pounds  of 
iiour,  one  pound  of  bread,  half  a  pint  of  rum,  of  the  value  of  six 

(0  This  form  was  hold  pood  in  Swaggerty  v.  State,  9  Ycrg.  338. 
(m)  This  allegation  is  vital.     Huivll  c.  State,  5  Humph.  G8. 
(n)  See  for  "Attempts  to  commit  Oilences,"  infra,  1046,  etc. 

413 


(459«)  OFFENCES    AGAINST    PROPERTY. 

shiUlngs  and  sixpence,  lawful  money  of  Pennsylvania,  of  the 
goods  and  chattels  of  the  said  W.  S.,  by  the  said  M.,  then  lately 
before  on  the  same  day  and  year  above  mentioned,  by  the  solici- 
tation, incitement,  and  persuasion  of  the  said  E.,  taken  and 
embezzled,  then  and  there  falsely,  knowingly,  subtly,  and  unlaw- 
fully did  receive,  obtain,  and  have,  of  and  from  the  said  M.,  to 
the  great  damage  of  the  same  W.  S.,  to  the  evil  example  of  all 
others  in  the  like  case  oftending,  and  against,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 

(459rt)  Receiving  and  concealing  under  Indiana  statute. 

That  M.  K.,  on,  etc.,  at,  etc.,  did  feloniously  buy,  receive, 
conceal,  and  aid  in  the  concealment  of  eleven  hogs,  of  the  value 
of  twelve  dollars  each,  the  said  hogs  then  and  there  being  the 
property  of  S.  H.,  G.  W.  P.,  and  6.  W.  K;  which  said  hogs, 
prior  to  the  time  they  were  so  bought,  received,  and  concealed 
by  said  Iv.,  had  been  feloniously  stolen,  taken,  and  carried  away, 
at  said  county,  by  some  person  to  said  jurors  unknown;  he,  the 
said  Iv.,  at  the  time  he  so  bought,  received,  concealed,  and  aided 
in  the  concealing  of  said  hogs,  well  knowing  that  the  same  had 
been  stolen,  contrary,  etc.(o)    {Conclude  as  in  book  1,  chapter  3.) 

(o)  It  was  held  in  Indiana  that  this  indictment  was  good,  though  it  did  not 
show  the  time  when  the  hogs  were  stolen,  and  that  they  were  the  subject  of  lar- 
ceny at  the  time  they  were  so  received.     Kaufman  v.  State,  49  Ind.  248. 

414 


EMBEZZLEMENT. 


CHAPTER  VII. 

EMBEZZLEMENT.(rO 

(460)  Against  officer  of  the  United   States  mint,  for  embezzling  money 

intrusted  to  him. 

(461)  Against  same  person  for  same,  charging  him  with  being  a  person 

employed  at  the  mint. 

(462)  Against  auctioneer  for  embezzlement,  under  the  Mass.  Rev.  Sts.  ch. 

126,  §  30. 

(463)  Second  count,  larceny. 

(464)  General  form  of  indictment  in  New  York. 

(465)  Second  count,  larceny. 

(465a)   Against  cashier  of  national  bank  for  embezzlement. 

(466)  Against  the  president  and  cashier  of  a  bank  for  an  embezzlement. 
Rev.  Sts.  of  Mass.  ch.  126,  §  17. 

(467)  Against  a  clerk  for  embezzlement.     Rev.  Sts.  of  Mass.  ch.  126,  §  29. 
(467a)  Another  form. 

(468)  Against  a  carrier  for  embezzlement.    Rev.  Sts.  of  Mass.  ch.  126,  §  30. 
(468a)  Against  bailee  for  embezzlement,  under  Mass.  Gen.  Stat. 

(469)  Embezzlement  by  clerk  or  servant,  In  England. 
(469  a)  Another  form, 

(4696)   Another  form. 

(469c)  Against  banker  for  conversion,  under  English  statute. 

(469</)  Against  banker  for  misappropriating,  etc. 

(469e)    Against  jailor,  under  English  statute. 

(469/)  Against  trustee,  under  English  statute. 

(469*7)  Against  director  of  company  for  embezzlement,  under  English  statute. 

(46  9A)  Against  same  for  publishing  false  statement,  under  English  statute. 


(a)  (Embezzlement  at  common  laio.)  In  general  an  indictment  for  a  mere 
breach  of  trust,  not  amounting  to  larceny,  will  not  lie  at  common  law.  But 
where  this  breach  of  trust  is  committed  by  a  public  officer  misapplying  the  funds 
with  which  he  Is  Intrusted  for  the  benefit  of  the  public,  he  may  be  indicted  for  a 
misdemeanor  In  respect  of  his  public  duty.  Thus  an  Indictment  will  lie  at  com- 
mon law  against  overseers  for  embezzlement,  giving  false  accounts,  or  not  ac- 
counting (see  forms  in  3  Chit.  C.  L.  701  et  seq.),  and  against  surveyors  of  high- 
ways for  embezzlement  of  gravel. 

See  for  embezzlement  generally,  Wh.  Cr.  L.  8th  ed.  §  1009.  As  to  indictment, 
see  Wh.  Cr.  L.  8th  ed.  §§  1044  et  seq.  As  to  joinder  of  counts,  lb.  §  1047.  The 
goods  embezzled  must  be  set  out  as  accurately  as  the  nature  of  the  case  admits, 
as  in  larceny.  AVh.  Cr.  L.  8th  ed.  §  1044;  xupra,  pp.  380  et  xeq.  It  is  not 
necessary  to  aver  from  whom  the  money  was  received.  K.  c.  Beacell,  1  C.  & 
P.  310. 

415 


(460)  OFFENCES  AGAINST  PROPERTY. 

(4G9/)  Against  partner,  under  English  statute. 
(4G9;')   Against  constable,  under  English  statute. 
(469^-)  Eraudulent  bankruptcy  in  England. 
(46  9i)  Ticket  scalping. 

(460)  Against  office?'  of  the  U.  S.  mint,  for  embezzling  money 
intrusted  to  hiiti. 

That  R.  IL,  etc.,  on,  etc.,  at,  etc.,  then  and  there  being  an 
officer  of  the  United  States  *  charged  with  the  safe-keeping, 
transfer,  and  disbursement  of  public  moneys,  unlawfully  and 
feloniously  did  convert  to  his  own  use  and  embezzle  a  portion 
of  the  said  public  moneys  intrusted  to  him  the  said  R.  H.  for 
safe-keeping,  transfer,  and  disbursement,  to  wit,  f  the  following 
coins  of  gold  which  had  been  struck  and  coined  at  the  mint 
of  the  United  States  {stating  the  coins),  altogether  of  the  value 
of  twenty-three  thousand  two  hundred  and  thirty-eight  dollars 
and  sixty-one  cents,  the  said  coins  of  gold  and  the  said  coins  of 
silver  and  the  said  coins  of  copper  being,  at  the  time  of  com- 
mitting the  felony  aforesaid,  the  property  of  the  United  States 
of  America,  contrary,  etc.,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

Second  count. 

{Same  as  first,  except  inserting  at  *  the  avermenf) :  "to  wit,  a  clerk 
of  the  mint  of  the  United  States  for  the  treasurer  of  the  said 
mint." 

Third  count. 

That  the  said  R.  H.,  on,  etc.,  at,  etc.,  then  and  there  being  an 
officer  of  the  United  States,  having  the  safe-keeping  and  dis- 
bursement of  the  ordinary  fund  for  paying  the  expenses  of  the 
mint  of  the  United  States,  and  charged  with  the  safe-keeping, 
transfer,  and  disbursement  of  public  moneys,  unlawfully  and 
feloniously  did  convert  to  bis  own  use  and  embezzle  a  portion 
of  the  public  money  intrusted  to  him  the  said  R.  H.  for  safe- 
keeping, transfer,  and  disbursement,  to  wit,  the  following  other 
coins  of  gold,  which  had  been  struck  and  coined  at  the  mint  of 
the  United  States  {stating  coins,  and  concluding  as  in  first  count). 
416 


EMBEZZLEMENT.  (460) 

Fourth  count. 

That  the  said  R.  H.,  on,  etc.,  at,  etc.,  then  and  there  being  an 
agent  of  the  United  States,  charged  with  the  safe-keeping,  trans- 
fer, and  disbursement  of  public  moneys,  unlawfully  and  feloni- 
ously did  convert  to  his  own  use  and  embezzle  a  portion  of  the 
public  moneys  intrusted  to  him  the  said  R.  H.  for  safe-keeping, 
transfer,  and  disbursement,  to  wit  (j)roceediiig  as  in  first  count 
from  t). 

Fifth  count. 

That  the  said  R.  H.,  on,  etc.,  at,  etc.,  then  and  there  being  an 
agent  of  the  United  States,  to  wit,  a  clerk  of  the  mint  of  the 
United  States  for  the  treasurer  of  the  said  mint,  charged  with 
the  safe-keeping,  transfer,  and  disbursement  of  public  moneys, 
unlawfully  and  feloniously  did  convert  to  his  own  use  and  em- 
bezzle a  portion  of  the  public  moneys  intrusted  to  him  the  said 
R.  H.  for  safe-keeping,  transfer,  and  disbursement,  to  wit,  the 
following  other  coins  of  gold,  which  had  been  struck  and  coined 
at  the  mint  of  the  United  States  {stating  coins^  and  concluding  as 
in  first  count). 

Sixth  count. 

That  the  said  R.  II.,  on,  etc.,  then  and  there  being  an  agent 
of  the  United  States,  having  the  safe-keeping  and  disbursement 
of  the  ordinary  fund  for  paying  the  expenses  of  the  mint  of  the 
United  States,  and  charged  with  the  safe-keeping,  transfer,  and 
disbursement  of  public  moneys,  unlawfully  and  feloniously  did 
convert  to  his  own  use  and  embezzle  a  portion  of  the  public 
moneys  intrusted  to  him  the  said  R.  II.  for  safe-keeping,  trans- 
fer, and  disbursement,  to  wit,  the  following  other  coins  of  gold, 
which  had  been  struck  and  coined  at  the  mint  of  the  United 
States  {stating  coins  ^  and  concluding  as  in  first  count). 

Seventh  count. 

That  the  said  R.  H.,  on,  etc.,  at,  etc.,  then  and  there  being  a 
person  charged  by  law  with  the  safe-keei)ing,  transfer,  and  dis- 
bursement of  the  public  moneys,  unlawfully  and  feloniously  did 
convert  to  his  own  use  and  embezzle  a  portion  of  the  public 
moneys  intrusted  to  him  the  said  R.  H.  for  safe-keeping,  trans- 

VOL.  I.— 27  417 


(460)  OFFENCES    AGAINST    PROPERTY. 

fer,  and  disbursement,  to  wit,  the  following  other  coins  of  gold, 
which  had  been  struck  and  coined  at  the  mint  of  the  United 
States  {stating  coins  and  concluding  as  in  first  count).{h) 
{For  final  county  see  ante,  14,  15,  16,  181, 7i.,  239,  7i.) 

(h)  U.  S.  V.  Hutchinson,  Penn.  L.  J.  for  June,  1848  (7  Penn.  L.  J.  365).  The 
prisoner  having  been  convicted,  a  new  trial  was  gi-anted  on  grounds  which,  as  will 
be  seen,  do  not  affect  the  character  of  the  indictment.  Kane,  J. :  "By  the  act 
of  congress  of  18th  January,  1837,  it  is  enacted  that  'the  ofhcers  of  the  mint  of 
the  United  States  shall  be  a  director,  a  treasurer,  a  melter  and  refiner,  a  chief 
coiner,  and  an  engraver, '  and  these  are  to  be  appointed  by  the  president  with 
the  advice  and  consent  of  the  senate.  Of  the  treasurer  so  appointed,  it  is  required 
among  other  things,  §  2,  that  '  he  shall  receive  and  safely  keep  all  moneys  which 
shall  be  for  the  use  and  support  of  the  mint ;  shall  keep  all  the  current  accounts 
of  the  mint,  and  pay  all  moneys  due  from  the  mint,  on  warrants  from  the  direc- 
tor.' The  act  then  provides  for  the  appointment  of  assistants  to  certain  of  the 
officers,  and  of  clerks  for  the  director  and  for  the  treasurer,  in  case  they  shall  be 
needed ;  they  are  to  be  appointed  by  the  director  of  the  mint,  with  the  approba- 
tion of  the  president  of  the  United  States;  the  assistants  'to  aid  their  principals,' 
and  the  clerks  to  '  perform  such  duties  as  shall  be  prescribed  for  them  by  the 
director;'  §  3. 

"The  prisoner  was  appointed  under  this  act  in  the  year  1840,  to  be  a  clerk  for 
the  treasurer  of  the  mint,  and  among  the  duties  prescribed  for  him  by  the  director 
was  the  charge  of  the  ordinary  or  continrient  fund,  by  Avhich  name  the  moneys 
for  the  ordinary  uses  of  the  mint  were  designated.  In  this  capacity  he  received 
the  moneys  of  that  fund  as  they  were  remitted  or  transferred  to  the  treasurer  of 
the  mint  by  the  orders  of  the  treasury  department,  and  paid  them  out  as  war- 
rants were  drawn  upon  the  treasurer  of  the  mint  by  the  director,  making  the 
proper  entries  of  such  receipts  and  payments  in  the  books  of  account  of  the  mint. 
He  had  the  key  of  a  closet  in  which  the  moneys  of  this  fund  were  k(!pt,  but  the 
outer  key  of  the  vault,  of  which  the  closet  formed  part,  was  in  the  charge  of 
another  person.  The  books  of  account  were,  all  of  them,  kept  in  the  name  and 
on  behalf  of  the  treasurer;  the  acknowledgments  for  all  moneys  received  were 
made  by  the  treasurer  personally ;  and  the  charges  for  such  moneys  were  entered 
against  him,  and  all  vouchers  for  payments  were  taken  in  the  treasurer's  name, 
and  he  received  credit  for  such  payment.  The  name  or  intervention  of  the  clerk 
did  not  appear  in  any  of  the  books,  vouchers,  or  accounts,  either  in  the  mint  or 
in  the  accounting  department  at  Washington,  with  which  it  corresponded. 

"  At  the  end  of  the  year  1847,  it  was  ascertained  that  a  large  sum  of  money 
was  missing  from  the  contingent  fund ;  and  the  prisoner,  having  been  arrested, 
was  indicted  for  embezzlement  under  the  acts  of  congress  of  13th  August,  1841, 
and  7th  August,  1846.     He  was  tried  in  the  district  court  and  found  guilty. 

"I  had  serious  doubts  while  the  case  was  before  the  jury,  whether  it  fell 
properly  within  the  provisions  of  the  acts  of  congress  ;  and  as  the  question  was  of 
the  lirst  importance,  1  was  desirous  that  it  should  be  discussed  more  fully  than  it 
could  be  at  bar.  I  therefore  charged  against  the  prisoner  upon  the  several  points 
of  law,  announcing  my  purpose,  as  the  case  was  one  in  which  the  circuit  and 
district  court  have  concurrent  jurisdiction,  to  solicit  the  advice  and  aid  of  Judge 
Grier  upon  the  hearing  of  a  rule  for  new  trial,  if  the  verdict  should  make  such  a 
rule  proper. 

"He  acceded  to  my  wish,  and  the  whole  subject  has  been  revised  before  us  by 
the  district  attorney  and  the  counsel  for  the  prisoner  in  the  most  ample  manner. 
The  result  is  an  unhesitating  concurrence  of  oj)inion  between  my  learned  brother 
and  myself,  that  the  verdict  cannot  stand.  We  regard  the  history  and  spirit  of 
these  acts  of  congress,  as  well  as  their  phraseology,  altogether  conclusive  ujson 
the  question. 

418 


EMBEZZLEMENT.  (461) 

(461)  Against  same  'person  for  same^  charging  him  with  being  a 
person  employed  at  the  mint. 

That  R.  H.,  etc.,  on,  etc.,  at,  etc.,  then  and  there  being  a  per- 
son employed  at  the  mint  of  the  United  States,  with  force  and 

"  At  the  common  law,  the  party  who  by  the  confidence  of  anotlicr  is  intrusted 
with  the  possession  of  his  property,  cannot  commit  the  crime  of  hirceny  by  appro- 
priating it  to  his  own  use.  The  fiduciary  character  of  the  delinquent  forms  his 
defence,  for  the  criminal  law,  until  it  was  modified  by  statute,  took  no  cognizance 
of  breaches  of  trust. 

"  At  the  same  time,  it  distinguished  between  the  legal  possession  of  property, 
such  as  the  very  existence  of  a  trust  implies,  and  that  mere  charge  or  supervision, 
which  is  devolved  on  a  servant  or  clerk.  The  servant  having  a  hare  charge,  to 
use  the  words  of  the  law,  became  guilty  of  theft  by  a  fraudulent  conversion. 

"Thus,  on  the  one  hand,  a  butler  who  had  charge  of  his  master's  plate,  the 
shepherd  who  watched  over  his  sheep,  and  the  shop-boy  who  attended  behind 
his  counter,  might  be  convicted  of  larceny,  if  they  converted  to  their  own  use 
their  master's  property.  AVhile,  on  the  other  hand,  the  attorney  who  pillaged 
his  principal,  the  guardian  who  defrauded  his  ward,  and  the  officer  who  embez- 
zled public  moneys,  which  the  law  had  confided  to  him,  were  not  answerable  as 
for  crime. 

"  The  United  States  courts  have  no  common  law  jurisdiction  ;  that  is  to  say, 
they  derive  their  only  power  to  try,  convict,  or  punish,  from  the  constitution, 
and  the  laws  made  in  pursuance  of  it.  The  jurisdiction  of  offences  which  are 
cognizable  at  common  law  resides  in  the  state  courts  alone,  even  though  the  gen- 
eral government  may  be  the  party  immediately  aggrieved  by  the  misdeed  com- 
plained ot. 

"  Until  the  year  1840,  the  congress  of  the  United  States  seems  to  have  been, 
in  general,  content  with  the  protection  which  the  laws  of  the  several  states  gave 
to  the  public  property  within  their  limits.  The  integrity  of  subordinates,  who 
were  not  themselves  intrusted  with  public  money,  though  they  might  from  their 
position  have  a  certain  charge  or  custody  of  it,  was  guarded  of  course  by  the 
common  law  and  the  local  statutes,  as  administered  by  the  state  courts.  Under 
these,  such  a  subordinate,  whether  called  by  the  name  of  Avatchman,  servant, 
clerk,  or  assistant,  miglit  be  punished  criminally  for  a  fraudulent  conversion  to 
his  own  use  of  the  moneys  of  the  general  government.  But  the  higher  officers, 
the  heads  of  departments,  the  treasurers  of  the  United  States  and  of  the  mint, 
the  collectors  of  customs,  land  officers,  and  others,  depositaries  of  important  pub- 
lic trusts,  though  required  in  some  instances  to  give  security  for  their  ofhcial 
fidelity,  were  punishable  only  by  impeachment  before  the  senate  of  the  United 
States. 

"  Several  very  large  defaults  having  occurred,  however,  on  the  part  of  impor- 
tant public  officers  of  the  revenue,  it  was  thought  necessary  to  protect  the  treas- 
ury by  additional  safeguards.  On  the  4th  of  July,  1840,  an  act  of  congress  was 
passed  '  to  provide  for  the  collection,  safe-keeping,  transfer,  and  disbursement  of 
the  public  revenue.'  This  act  created  and  defined  the  crime  of  embezzlement, 
and  made  it  applicable  to  all  those  officers  who  were  charged  by  tiie  ])rovisions 
of  the  act  itself  with  the  '  safe-keeping,  transfer,  or  disbursements  of  public 
moneys.'  As  to  all  others,  officers  as  well  as  servants  or  clerks,  except  those 
connected  with  the  post-office  (to  whom  it  was  specially  extended),  it  left  the 
law  unchanged. 

"The  act  of  1840  was  repealed  on  the  13th  of  August  of  the  following  year, 
but  the  provisions  respecting  embezzlements  were  re-enacted  in  a  sliglitly  modi- 
fied form,  so  as  to  include  among  those  who  might  become  subject  to  its  penal- 

419 


(461) 


OFFENCES    AGAINST    PROPERTY. 


arms,  unlawfully  and  feloniously  did  embezzle  certain  coins  of 
gold,  which  had  been  struck  and  coined  at  the  said  mint,  to  wit, 

ties,  all  '  officers  charrjed  with  the  safe-keeping,  transfer,  or  disbursement  of  the 
public  moneys,  or  connected  with  the  post-ofhce  department.  But  as  to  all  but 
officers;  so  charged,  it  left  the  law  as  it  stood  before  the  year  1840. 

"The  act  of  1846  followed.  This  substantially  reconstituted  the  treasury  sys- 
tem Avhich  had  been  rescinded  in  1841,  but  made  further  provision  also  for  the 
punishment  of  embezzling.  Its  terms  are  somewhat  broader,  perhaps,  than  those 
of  the  two  preceding  acts,  for  they  apply  to  '  all  officers  and  other  persons  charged 
by  this  act  or  any  other  act  with  the  safe-keeping,  transfer,  and  disbursement  of 
public  moneys.'  But  its  spirit  and  objects  are  the  same;  and  the  detailed  pro- 
visions of  its  several  sections  have  obvious  reference  to  persons  intrusted  by  some 
act  of  congress  with  the  legal  possession  of  public  money,  not  to  those  subordi  • 
nates,  who,  not  having  been  intrusted  with  such  possession,  could  be  punished 
for  a  fraudulent  conversion,  as  felons,  without  any  congressional  legislation.  The 
act  throughout  applies  not  to  clerks,  workmen,  or  other  servants,  but  to  the  le- 
gally authorized  custodiers  of  public  moneys,  the  '■fiscal  agents'  recognized  as 
such  at  the  treasury  of  the  United  States,  charged  there  with  receipts,  and  cred- 
ited with  disbursements  ;  in  a  word,  to  officers  or  agents  '  intrusted'  by  law  or 
under  law  with  tlie  possession  of  public  money,  and  bound  to  account  for  it. 

"The  duties  which  it  enjoins,  the  safeguards  and  checks  which  it  creates,  the 
direct  accountability  which  it  prescribes  and  enforces,  the  evidence  it  appeals  to 
as  establishing  the  fact  of  delinquency — even  the  allowance  it  makes  for  certain 
official  expenses — all  together  stamp  on  it  this  limited  character.  Thus  it  re- 
quires of  the  officer  that  he  shall  keep  an  accurate  entry  of  each  sum  that  he 
receives,  and  each  payment  or  transfer  that  he  makes  ;  obviously  with  reference 
to  the  account  he  is  to  render  of  his  receipts  and  disbursements  at  the  treasury 
department ;  it  nudces  him  punishable  if  he  transmits  to  the  treasurer  a  false 
voucher,  or  a  voucher  that  does  not  truly  represent  a  payment  actually  made  ;  a 
transcript  from  the  treasury  books  showing  a  balance  against  him  is  made  suffi- 
cient evidence  of  his  indebtedness  ;  '  a  draft,  warrant,  or  order,  drawn  by  the 
ti'casury  department  upon  him,'  and  not  paid,  is  th.e  primary  proof  of  his  embez- 
zlement ;  and  provision  Is  made  for  the  necessary  clerk  hire,  and  other  expenses 
of  a  large  class,  at  least  of  the  officers  included  within  its  terms. 

"It  needs  no  argument  to  show  that  these  enactments  are  without  just  appli- 
cation to  a  person  who  is  merely  a  clerk  himself,  who  is  unknown  to  the  treasury 
department,  who  is  neither  charged  nor  credited  with  public  moneys  there  or 
elsewhere,  who  transmits  no  vouchers,  because  he  renders  no  account,  against 
whom,  therefore,  no  treasury  transcript  can  ever  be  produced,  on  whom  no  treas- 
ury draft,  warrant,  or  order  can  be  drawn  under  any  circumstances,  and  to  whom 
neither  the  act  of  1846  nor  any  other  act  has  ever  intrusted  public  moneys,  either 
personally  or  by  official  designation. 

"  The  prisoner  was  such  a  person.  In  point  of  fact  he  was  never  in  legal  pos- 
session of  the  moneys  he  has  abstracted.  They  were  moneys  of  the  United 
States,  in  which  he  had  no  special  or  (jualificd  property,  which  had  been  intrusted 
to  the  safe-keeping  of  the  treasurer  of  the  mint  by  the  express  language  of  an  act 
of  congi'css,  and  which  could  not  be  withdrawn  from  his  legal  custody  and  charge 
except  by  warrant  of  an  appropriate  officer  in  the  form  designated  by  law. 

"  We  do  not  understand  that  the  prescription  of  the  clerk's  duties  bj'  the  direc- 
tor was  intended,  or  supposed,  to  interfere  with  this  official  charge  of  the  treasurer. 
Had  it  been  so,  there  would  have  been  some  record,  some  book  entry,  some 
memorandum  at  least  in  the  mint,  showing  the  character  if  not  the  amount  of 
liabilities,  from  which  the  treasurer  could  claim  to  be  relieved  by  the  clerk's 
assumption  of  them.  There  would  have  been  some  recognition  of  the  fact  at  the 
treasury  in  Washington,  if  the  clerk  had  been  constituted  a  receiving,  safe-keep- 
ing, or  disbursing  officer ;  he  would  have  been  called  on,  as  by  law  all  such  offi- 

420 


EMBEZZLEMENT.  (462) 

{stating  the  coins),  *  the  said  coins  of  gold  and  the  said  coins  of 
silver  and  the  said  coins  of  copper  being,  at  the  time  of  the  com- 
mitting of  the  felony  aforesaid,  the  property  of  the  United 
States  of  America,  contrary,  etc.,  and  against,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

Second  count. 

That,  etc.,  the  said  E-.  H,,  then  and  there  being  a  person  era- 
ployed  at  the  mint  of  the  United  States,  to  wit,  a  clerk  of  the 
said  mint  for  the  treasurer  of  the  said  mint,  with  force  and  arms, 
unlawfully  and  feloniously  did  embezzle  certain  other  coins  of 
gold,  struck  and  coined  at  the  said  mint,  to  wit  {stating  the  coins, 
and  concluding  as  in  first  count  from*). 

{For  final  count,  see  supra,  17,  18,  181,  n.,  239,  n.) 

(462)  Against  auctioneer  for  embezzlement^  under  Mass.  Rev.  Sts. 
ch.  126,  §  30.(c) 

That  T.  S.,  etc.,  on,  etc.,  at,  etc.,  solicited  employment  as  an 
auctioneer  of  and  for  E.  G.,  of  said  Boston,  merchant,  and  in 

cers  are  called  on,  to  render  his  accounts,  to  declare  from  time  time  what  moneys 
he  had  received,  to  exhibit  vouchers  for  his  disbursements,  and  thus  to  define 
the  extent  of  his  liabilities  to  the  United  States. 

"But  wluitever  may  have  been  the  terms,  or  the  usage,  or  the  understanding 
which  proposed  to  set  forth  the  prisoner's  (hities  as  a  clerk,  they  could  not  ab- 
solve the  treasurer  from  that  legal  custody  with  which  the  act  of  congress  and 
his  commission  had  invested  him.  The  ck-rk's  possession,  whatever  it  was,  Avas 
in  law  the  possession  of  the  treasurer;  and  the  clerk's  liabilities,  tlierefore,  upon 
the  facts  found  by  the  jury,  are  those  of  a  servant  merely,  not  of  a  person  eitiier 
'charged'  or  'intrusted  by  law,'  with  the  safe-keeping,  transfer,  or  disbursement 
of  the  public  moneys. 

"The  case  is  one  to  which  the  statute  does  not  extend,  and  the  rule  must 
therefore  be  made  absolute." 

The  indictments  in  the  text  were  prepared  by  Mr.  Pettit,  the  U.  S.  district 
attorney  in  Philadelphia. 

(c)  Com.  r.  Stearns,  2  Met.  343.  Dewey,  J. :  "  The  questions  raised  in  the 
present  case  require  a  construction  of  the  Rev.  Sts.  ch.  136,  §  29,  and  are  of  no 
inconsiderable  importance  in  their  consequences,  in  marking  tlie  distinction  be- 
tween those  acts  which  are  to  be  denominated  as  felonies,  punishable  by  igno- 
minious punishments,  and  those  defaults  in  tlie  payment  of  money  or  in  the  dis- 
charge of  contracts,  for  wliich,  however  unjustifiable,  the  law  authorizes  no  other 
mode  of  redress  than  a  civil  action  by  the  jtarty  airgrieved. 

"The  principles  of  the  common  law  not  being  found  adequate  to  protect 
general  owners  against  the  fraudulent  conversion  of  property  by  persons  stand- 
ing in  a  certain  fiduciary  relation  to  those  who  were  the  sul)jects  of  their  ])ecu- 
lations,  certain  statutes  iiave  been  enacted,  as  well  in  I^ngland  as  in  tliis  com- 
monwealth, creating  new  criminal  ofiences  and  annexing  to  them  tlieir  jjroper 
punishments.     The  consequence  is,  therefore,   that  many  acts  which  formerly 

421 


(462)  OFFENCES  AGAINST  PROPERTY. 

consideration  that  said  G.  would  employ  him  as  his  agent  for 
the  sale  of  cotton  goods,  undertook  and  engaged  to  serve  said 
G.  as  his  agent  in  that  employment,  and  stipulated  to  pay  over 
to  said  G.,  promptly  and  without  delay,  the  cash  proceeds  of 
said  cotton  goods,  at  eight  cents  per  yard,  which  said  S.  should 
sell  for  him  at  public  auction  ;  and  afterwards,  at  said  Boston, 
said  G.  delivered  to  and  intrusted  to  said  S.,  in  said  employment 
as  his  agent,  sundry,  to  wit,  four,  bales  of  cotton  goods,  to  be 
sold  as  aforesaid,  and  the  cash  proceeds  thereof,  at  eight  cents 
for  each  yard,  to  be  promptly  paid  by  said  S.  to  said  G.,  and 
within  three  days  after  the  sale  of  each  of  said  bales  of  goods, 
and  by  virtue  of  said  employment,  and  as  agent  of  said  G. 
as  aforesaid,  said  S.  took  and  received  said  goods,  and  sold  the 
same  for  cash,  and  received  in  payment  therefor  the  money  and 
price  and  proceeds  thereof,  to  wit,  the  sum  of  two  hundred  and 

were  denominated  mere  breaches  of  trust,  and  subjected  the  party  to  a  civil 
action  only,  have  now  become  cognizable  before  our  criminal  courts  as  offences 
against  the  commonwealth.  The  statutes  necessarily  require  a  careful  discrim- 
ination in  their  application  to  the  various  cases  that  may  arise,  and  it  may  be 
found  somewhat  difficult  to  mark  out,  with  entire  precision,  the  line  of  discrim- 
ination between  the  acts  punishable  as  crimes  under  these  statutes,  and  those 
that  may  not  be  embraced  by  them,  while  they  may  yet  present  strong  cases  of 
breach  of  good  faith  and  violation  of  the  confidence  reposed  in  the  party  guilty 
of  the  breach  of  trust. 

"The  court  have,  therefore,  very  carefully  considered  the  facts  disclosed  in 
the  case  now  before  us,  and  the  result  to  which  we  have  arrived  will  be  stated, 
after  disposing  of  a  preliminary  objection  that  was  suggested  by  the  counsel  for 
the  defendant,  thougli  apparently  not  much  relied  on. 

"This  objection  was,  that  it  is  necessary,  in  order  to  bring  the  offence  within 
the  Rev.  Sts.  ch.  12G,  §  29,  that  the  property  embezzled  should  belong  to  some 
other  person  than  the  master  or  principal,  whose  servant  or  agent  is  charged 
■with  the  embezzlement ;  inasmuch  as  the  statute  provides,  that,  '  if  any  clerk, 
agent,  or  servant,  etc.,  siiall  embezzle  or  fraudulently  convert  to  his  own  use, 
without  the  consent  of  his  employer  or  master,  any  money  or  property  of 
another,'  etc. 

"  A  similar  objection  appears  to  have  been  overruled  by  the  supreme  court  of 
the  state  of  New  York,  in  an  indictment  on  the  revised  statutes  of  tliat  state, 
vol.  2,  p.  6  78,  §  59  ;  a  statute  from  which  ours  seems  suVjstantially  to  have  been 
framed.  The  words  there  used  are,  '  belonging  to  any  other  person;'  but  the 
court  iield  that  these  words,  as  used  in  the  statute,  meant  any  other  person  than 
he  who  is  guilty  of  embezzlement.  People  v.  Hennessey,  15  Wend.  147.  A 
different  construction  from  this  would  be  inconsistent  with  the  earlier  course  of 
legislation  on  this  subject  (see  stat.  1834,  ch.  186),  and  would  leave  unprovided 
for  all  cases  of  embezzlement,  by  servants  or  agents,  of  the  property  of  their 
masters  or  their  principals.  We  are  of  opinion  that  that  offence,  made  punishable 
by  the  revised  statutes  of  this  commonwealth,  ch.  126,  §  29,  was  not  intended 
to  be  restricted  in  the  manner  suggested  by  the  counsel  for  the  defendant,  but 
may  properly  be  held  to  embrace  cases  of  embezzlement,  by  servants  or  agents, 
of  the  property  of  their  masters  or  principals." 

422 


EMBEZZLEMENT.  (464) 

seventy-two  dollars,  which  money  and  proceeds  of  said  goods 
came  into  the  hands  and  possession  of  said  S.  by  virtue  of  said 
employment,  and  as  the  agent  and  servant  of  said  G.,  under  the 
trust  and  agreement  aforesaid  ;  and  the  jurors,  etc.,  on  their 
oaths  aforesaid,  do  further  present,  that  the  said  T.  S.,  after- 
wards, to  wit,  on,  etc.,  at,  etc.,  then  and  there  having  in  his  pos- 
session the  said  money  and  proceeds  of  said  goods  sold  by  him 
for  said  G.,  the  same  money  and  proceeds  being  the  property 
and  money  of  said  G.,  in  the  hands  of  said  S.,  as  his  agent  and 
servant  as  aforesaid,  and  which  same  money  and  proceeds  came 
into  the  hands  and  possession  of  said  S.  by  virtue  of  his  em- 
ployment as  agent  of  said  G.,  and  of  the  trust  aforesaid,  to  wit, 
the  sum  of  two  hundred  and  seventy-two  dollars,  he  the  said 
S.  then  and  there  unlawfully  and  fraudulently  embezzled  and 
converted  the  same  to  his  own  use,  and  took  and  secreted  the 
same  with  intent  to  embezzle  and  convert  the  same  to'  his  own 
use,  without  consent  of  said  G.,  his  said  employer,  the  same 
being  the  money  and  property  of  said  G.,  which  came  to  the 
possession  of  said  S.,  and  w^as  under  his  care  by  virtue  of  said 
employment;  and  by  said  embezzlement,  conversion,  and  secret- 
ing of  the  same  money  and  property  as  aforesaid,  and  by  force 
of  the  statute  in  such  case  made  and  provided,  said  S.  is  deemed 
to  have  committed  the  crime  of  simple  larceny. 

(463)  Second  count.     Larceny. 

That  said  S.,  on,  etc.,  at,  etc.,  the  same  money  and  proceeds 
aforesaid,  of  the  proper  money  and  property  of  said  G.,  in  his 
possession  as  aforesaid,  feloniously  did  steal,  take,  and  carry 
away,  against,  etc.,  and  against,  etc.  {Concladc  as  in  hook  1, 
chapter  3.) 

[^For  indictment  against  factor  for  converting  principaFs  fund  to 
his  own  use,  etc.,  under  Pennsylvania  statute,  see  post,  519.] 

(464)  General  form  of  indictment  in  New  York. 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  was  employed  in  the  capacity 
of  a  clerk  and  servant  to  one  C.  D.,  and  as  such  clerk  and 
servant  was  intrusted  to  receive,  etc.  {stating  the  nature  of  the 
trust),  and  being  so  employed  and  intrusted  as  aforesaid,  the  said 
A.  B.,  by  virtue  of  such  employment,  then  and  there  did  receive 

423 


(465)  OFFENCES   AGAINST    PROPERTY. 

and  take  into  his  possession  {stating  the  subject  of  the  embezzle- 
ment)^ for  and  on  account  of,  etc.,  his  said  master  and  employer; 
and  that  the  said  A.  B.,  on  the  day  and  year  last  aforesaid,  with 
force  and  arms,  at  the  ward,  city,  and  county  aforesaid,  fraudu- 
lently and  feloniously  did  take,  make  way  with,  and  secrete, 
and  did  embezzle  and  convert  to  his  own  use,  without  the  assent 
of  the  said  C.  D.,  his  master  and  employer,  the  said,  etc.,  of  the 
goods,  chattels,  personal  property,  and  money  of  the  said  C.  D., 
which  said  goods,  chattels,  personal  property,  and  money  had 
come  into  his  possession,  and  under  his  care,  by  virtue  of  his 
being  such  clerk  and  servant  as  aforesaid,  to  the  great  damage 
of  the  said  C.  D.,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(465)  Second  count.     Larceny. 

That  the  said  A.  B.,  on,  etc.,  at,  etc.,  of  the  goods,  chattels, 
and  personal  property  of  one  C.  D.,  then  and  there  being  found, 
feloniously  did  steal,  take,  and  carry  away,  to  the  great  damage 
of  the  said  C.  D.,  against,  etc,  and  against,  etc.  {Conclude  as  in 
book  1,  chapter  d.){d) 

(d)  In  State  v.  Butler,  2G  Minn.  90,  •we  have  the  following  opinion  from 
Perry,  J.  :  So  much  of  the  indictment  as  is  important  in  considering  the  points 
made  by  the  defendant  is  as  follows  :    "  Chauney  Butler  is  accused,  by  the  grand 

jury of  the  crime  of  larceny,  committed  as  follows  :  That  the 

said  Chauney  Butler  did  wrongfully  ....  and  feloniously  embezzle, 
and  fraudulently  convert  to  his  own  use  the  moneys  of  J.  S.  Rowell,  Theodore 
Eowcll,  S.  AV.  Rowell,  and  Ira  Rowell,  copartners  as  J.  S.  Rowell,  Sons  &  Com- 
pany, which  said  moneys  were  then  in  the  sum  and  of  the  value  of  sixty-eight 
dollars  and  fifty  cents,  and  were  then  and  tliere  the  moneys  and  personal  pro- 
perty of  the  said  J.  S.  Rowell"  [names  as  before],  "  but  a  more  particular  de- 
scription of  which  said  moneys,  or  of  the  kind,  character,  number,  or  denomina- 
tion of  the  same,  or  any  of  the  same,  is  to  the  grand  jury  unknown ;  tliat  the 
moneys  so  as  aforesaid  by  the  said  Chauney  Butler  .  .  .  embezzled  and 
fraudulently  converted  .  .  .  were  then  and  there  received  and  collected  by 
the  said  Chauney  Butler  from  one  F.  Brandt,  in  payment  of  a  certain  promissory 
note,  in  writing,  for  the  payment  of  money,  made  and  executed  by  the  said  F. 
Brandt,  then  and  there  the  personal  property  of,  and  belonging  to  the  said  J.  S. 
Rowell"  [names  as  before],  "which  said  note  had,  theretofore,  by  tlie  said  J. 
S.  Rowell"  [names  as  before]  "  been  entrusted  and  placed  and  came  for  collec- 
tion into  the  hands  of  the  said  Chauney  Butler,  and  upon  collection  thereof,  the 
moneys  collected  thereon  to  be  by  him,  the  said  Chauney  Butler,  remitted  and 
paid  to  said  J.  S.  Rowell"  [names  as  before]  ;  "  and  the  said  Chauney  Butler  be- 
ing then  a  person  over  the  age  of  sixteen  years,  and  not  an  apprentice  ;  and  such 
embezzlement  and  conversion  of  said  moneys  being  done  and  committed  by  him, 
tlie  said  Cliauncy  Butler,  without  the  consent  and  against  the  will  of  the  said  J. 
S.  Rowell"  [names  as  before].  '•  And  so  the  grand  jury  do  saj'  that  .... 
the  moneys  of  said  J.  S.  Rowell"  [names  as  before],  "  of  value,  to  wit  of  the 
value  of  sixty-eight  dollars  and  tifty  cents,  then  and  there  the  moneys  and  perso- 

424 


EMBEZZLEMENT.  (465a) 

(465a)  Against  cashier  of  national  hank  for  embezzlement. 

The  jurors  for,  etc.,  upon  their  oath  present,  that  heretofore, 
to  wit,  on,  etc.,  there  was,  at,  etc.,  a  certain  national  banking 
association,  to  wit,  etc.,  theretofore  duly  organized  and  estab- 
lished, and  then  existing  and  doing  business,  at,  etc.,  aforesaid, 
under  the  laws  of  the  said  United  States,  and  R.  B.  C.  was 
then  and  there  cashier  and  agent  of  the  said  association,  and  as 
such  cashier  and  agent  then  and  there  had  and  received  in  and 

nal  property  of  the  said  J.  S.  Rowell"  [names  as  before],  "  the  said  Chauncy 
Butler  did  wrongfully,  unlawfully,  and  ielonlously  take,  steal,  and  carry  away, 
contrary  to  the  form  of  the  statute  in  such  case  made  and  provided,"  etc. 

"Defendant's  first  objection  to  the  indictment  is  that  'it  is  uncertain  as  re- 
gards the  particular  circumstances  of  the  ofi'ences  charged,'  and  that  'it  is  impos- 
sible to  gather  from  the  indictment  any  distinctive  charge.'  While  the  indict- 
ment cannot  be  said  to  be  very  neatly  framed,  we  think  it  is  sufficient.  It,  in 
effect,  charges  that  the  defendant  had  committed  the  crime  of  larceny,  by  embez- 
zling and  fraudulently  converting  to  his  own  use  the  sum  of  sixty-eight  dollars 
and  filty  cents,  in  money,  which  he  had  collected  of  one  F.  Brandt  for  the  part- 
nership firm  of  J.  S.  Howell,  Sons  &  Company,  in  payment  of  a  promissory  note 
executed  by  said  Brandt,  which  was  the  pro})erty  of  said  firm,  hy  wliicli  it  had 
been  placed  in  the  defendant's  hands  to  be  by  him  collected,  the  moneys  col- 
lected thereon  to  be  by  him  paid  over  to  said  firm.  The  embezzlement  and 
fraudulent  conversion  are  also  charged  to  have  been  without  the  consent  of  the 
firm.  Tt  seems  to  us  that  this  is  a  certain  and  distinct  charge  of  an  offence  de- 
scribed in  Laws,  1876,  c.  55  (Gen.  St.  1878,  c.  95,  §  33),  which,  among  other 
things,  provides  that  if  a  person  who  receives  or  collects  money,  for  the  use  of 
and  belonging  to  another,  embezzles  or  fraudulently  converts  said  money  to  his 
own  use,  without  the  consent  of  the  owner  of  said  money,  he  shall  be  deemed  to 
have  committed  larceny.  An  indictment  for  such  embezzlement  and  fraudulent 
conversion  properly  accuses  the  person  indicted  of  the  crime  of  larceny.  State 
V.  New,  22  Minn.  76. 

"  The  other  objection  to  the  indictment  is  that  the  maker  of  the  note  and  some 
of  the  members  of  the  firm,  as  well  as  the  firm  itself,  are  designated  by  the  initials 
only  of  their  Christian  names.  As  respects  the  name  of  the  maker  of  the  note, 
there  is  nothing  to  show,  and  no  presumption,  that  the  note  is  signed  otherwise 
than  with  the  initial  of  his  Christian  name,  just  as  is  alleged  in  the  indictment. 
Certainly  it  must  be  sufficient  to  describe  the  signature  of  the  note  according  to 
the  fact,  and  also  sufficient  to  allege  that  it  was  collected  of  the  person  bearing 
the  name  by  which  the  note  is  signed.  With  regard  to  the  name  of  the  firm 
thei-e  is  nothing  to  show,  and  no  presumption,  that  the  name  'J.  S.  Rowell, 
Sons  &  Company'  is  not  the  firm  name  and  the  whole  of  it.  The  note  was  the 
property  of  the  firm,  and  the  important  thing,  therefore,  was,  that  the  firm 
sliould  be  correctly  designated  by  its  firm  name.  What  the  law  requires  is  that 
the  particular  offence  charged  shall  he  described  with  sufiicient  certainty  to 
indentify  it.  Both  with  regard  to  the  maker  of  the  note,  and  the  name  of  the 
firm,  there  can  be  no  doubt  that  the  offence  charged  in  tliis  case  is,  uj)om  the  face 
of  the  indictment,  sufficiently  identified,  not  only  to  inform  the  defendant  of  what 
he  is  accused,  but  to  describe  and  distinguish  it  from  other  oifences.  See  also 
Gen.  St.  c.  108,  §  8,  and  State  v.  Boylson,  3  Minn.  325  (438). 

"  We  think  the  defendant's  objections  to  the  indictment  are  untenable,  and  that 
the  indictment  is  sufficient." 

425 


(465a)  OFFENCES  AGAINST  PROPERTY. 

into  his  possession  certain  of  the  moneys,  funds,  and  credits  of 
said  association,  to  wit,  certain  United  States  treasury  notes  of 
great  value,  to  wit,  of  the  value  of  five  hundred  dollars,  cer- 
tain national  bank  notes  of  great  value,  to  wit,  of  the  value  of 
five  hundred  dollars,  and  certain  checks,  to  wit,  bank  checks 
of  great  value,  to  wit,  of  the  value  of  nine  thousand  dollars, 
a  more  particular  description  of  which  said  treasury  notes, 
national  notes,  and  checks,  the  said  jurors,  etc.,  have  not  and 
cannot  give;  and  the  said  treasury  notes,  bank  notes,  and  checks, 
then  and  there  being  the  property  of  said  banking  association, 
of  great  value  aforesaid,  and  then  and  there  being  in  the  posses- 
sion of  said  C,  as  such  cashier  and  agent  as  aforesaid,  he  the 
said  C  did  then  and  there,  at,  etc.,  on,  etc.,  unlawfully,  with 
intent  to  defraud  said  banking  association,  embezzle,  abstract, 
and  wilfully  misapply,  and  convert  to  his  said  C.'s  own  use, 
against  the  peace,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(^Second  count  like  the  first  with  slight  variation  in  statement. 

Thirds  fourth^  fifths  sixth,  seventh,  and  eighth  counts  charge  emhez- 
zlement  of  particular  cheeks  set  out  in  each  count  according  to  their 
tenor. 

Ninth  count  charges  the  embezzlement  of  treasury  notes,  bank  notes, 
and  coin  in  staternerits  similar  to  those  of  the  first  count.) 

Tenth  count. 

The  jurors,  etc.,  present,  that  heretofore,  to  wit,  on,  etc., 
there  was  at,  etc.,  a  certain  banking  association,  to  wit,  etc., 
theretofore  duly  organized  and  established,  and  then  existing 
and  doing  business  under  the  laws  of  the  United  States  relat- 
ing to  national  banks,  and  R.  B.  C.  was  then  and  there  cashier 
and  agent  of  said  association,  and  did  then  and  there,  without 
authority  from  the  directors  of  said  association,  and  with  intent 
of  him,  the  said  C,  then  and  there  to  defraud  said  association, 
draw  a  certain  order,  and  bill  of  exchange  of  the  tenor  follow- 
ing {setting  out  the  bill  of  exchange),  and  the  said  E.  national 
bank  of,  etc.,  at  the  time  of  drawing  said  order  and  bill  of 
exchange  as  aforesaid,  had  directors  and  a  board  of  directors, 
and  long  prior  thereto  had  directors  and  a  board  of  directors, 
426 


EMBEZZLEMENT.  (466) 

all  of  which  said  C.  then  and  there  well  knew,  against  the 
peace,  etc.(e)     [Conclude  as  in  book  1,  chapter  3.) 

(466)  Against  the  president  and  cashier  of  a  bank  for  an  embezzle- 
ment.    Rev.  Sts.  of  Mass.  ch.  126,  §  27.(/) 

That  "William  "Wyman,  late  of  Charlestown,  in  the  county  of 
Middlesex,  gentleman,  and  Thomas  Brown  the  younger  of  that 
name,  of  the  same  place,  gentleman,  at  Charlestown  aforesaid, 
in  the  county  aforesaid,  on  the  first  day  of  April,  in  the  year  of 
our  Lord  the  said  Wyman  then  and  there  being  one  of  the 
directors  and  president  of  the  Phoenix  Bank,  a  corporation  then 
and  there  duly  and  legally  established,  organized,  and  existing 
under  and  by  virtue  of  the  laws  of  the  said  commonwealth,  as 
an  incorporated  bank,  and  the  said  Brown  being  then  and  there 
cashier  of  the  said  bank,  did,  by  virtue  of  their  said  respective 
offices  and  employments,  and  whilst  the  said  Wyman  and  Brown 
were  severally  employed  in  their  said  respective  offices,  have, 
receive,  and  take  into  their  possession  certain  money  to  a  large 
amount,  to  wit,  to  the  amount  and  sum  of  two  hundred  and 
twenty  thousand  dollars,  and  of  the  value  of  two  hundred  and 
twenty  thousand  dollars,  divers  bills,  called  bank  bills,  amount- 
ing in  the  whole  to  the  sum  of  one  hundred  and  twenty  thou- 

(e)  This  was  the  indictment  in  U.  S.  r.  Conant,  U.  S.  Cir.  Ct.,  Boston,  18  79. 
The  defendant's  conviction  was  sustained. 

(/)  Com.  V.  Wyman,  8  Metcalf,  247.  The  indictment  in  this  case,  say 
Messrs.  Train  &  Heard,  was  founded  on  the  Rev.  Sts.  of  Mass.  ch.  133,  § 
10,  which  enact,  that  "In  any  prosecution  for  the  offence  of  embezzlinjj  the 
money,  bank  notes,  checks,  drafts,  bills  of  exchange,  or  other  securities  for 
money,  of  any  person,  by  a  clerk,  agent,  or  servant  of  such  person,  it  shall  be 
sufficient  to  allege  generally,  in  the  indictment,  an  embezzlement  of  money  to  a 
certain  amount,  without  specifying  any  particulars  of  such  embezzlement,  and 
on  the  trial,  evidence  may  be  given  of  any  such  embezzlement,  committed 
within  six  months  next  after  the  time  stated  in  the  indictment ;  and  it  shall  be 
sufficient  to  maintain  the  charge  in  the  indictment,  and  shall  not  be  deemed 
a  variance,  if  it  shall  be  proved  that  any  money,  bank  note,  check,  draft,  bill 
of  exchange,  or  other  security  for  money,  of  such  person,  of  whatiiver  amount, 
was  fraudulently  embezzled  by  such  clerk,  agent,  or  servant,  within  the  said 
period  of  six  months."  In  Com.  v.  AVyman  it  was  held,  that  this  section  did 
not  include  bank  officers,  and  that  a  bank  officer,  when  accused  of  embezzle- 
ment, must  be  charged  with  a  specific  act  of  i'raud,  as  in  hu'ceny  at  common 
law,  and  be  proved  guilty  of  the  specific  offence  charged,  and  that  not  more 
than  one  offence  could  be  alleged  in  one  count  of  the  indictment.  But  by 
Stat.  1856,  ch.  215,  the  provisions  of  tliis  section  are  extended  to  all  proseciK 
tions  of  a  similar  nature,  against  pre.sideuts,  directors,  cashiers,  and  other  offi- 
cers of  banks. 

427 


(467)  OFFENCES    AGAINST    PROPERTY. 

sand  dollars,  and  of  the  value  of  one  hundred  and  twenty  thou- 
sand dollars,  divers  notes,  called  treasury  notes,  amounting  in 
the  whole  to  the  sura  of  seventy-five  thousand  dollars,  and  of 
the  value  of  seventy  five  thousand  dollars,  of  the  goods  and 
chattels,  property,  and  moneys  of  the  said  president,  directors, 
and  company  of  the  Phajnix  Bank,(^)  in  their  banking-house 
there  situate,  being;  and  the  said  money,  bills,  and  notes,  then 
and  there  unlawfully,  fraudulently,  and  feloniously  did  em- 
bezzle, in  the  banking-house  aforesaid.  And  so  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  say,  that  the  said  Wyman 
and  Brown  then  and  there,  in  manner  and  form  aforesaid,  the 
aforesaid  money,  bills,  and  notes,  of  the  goods,  chattels,  prop- 
erty, and  moneys  of  the  said  president,  directors,  and  company 
of  the  Phoenix  Bank,  feloniouslj^  did  steal,  take,  and  carry  away, 
in  the  banking-house  aforesaid  ;  against,  etc.,  and  contrary,  etc. 
{Conclude  as  in  hook  1,  chapter  3.) 

(467)  Against  a  clerk  for  embezzlement.    Rev.  Sts.  of  Mass.  ch.  126, 

§  29.(A) 

That  C.  D.,  late  of  B.,  in  the  county  of  S.,  trader,  on  the  first 
day  of  June,  in  the  year  of  our  Lord         at  B.,  in  the  county 

(g)  The  ownership  may  be  laid  in  the  person  having  the  actual  or  construc- 
tive possession,  or  the  general  or  special  property  in  the  whole,  or  in  any  part 
of  the  property.  Rev.  Sts.  of  Muss.  eh.  133,  §  11  ;  Com.  v.  Harney,  10  Met- 
calf,  42G  ;  Tr.  &  H.  Free.  188. 

(h)  Tr.  &  H.  Free.  189.  In  Massachusetts,  say  Messrs.  Train  &  Heard,  it 
has  been  held,  that  there  are  a  certain  class  of  cases  which  do  not  come  within 
the  statute.  Thus,  in  Com.  v.  Libbey,  11  Metcalf,  64,  that  a  person  who  is 
employed  to  collect  bills  for  the  proprietors  of  a  newspaper  establishment,  and 
converts  to  his  own  use  the  money  which  he  collects  for  them,  is  not  such  an 
agent  or  servant  as  is  intended  by  section  twenty-nine.  In  this  case,  Dewey,  J., 
said :  "In  the  case  of  a  domestic  servant,  and  to  some  extent,  in  the  case  of  a 
special  agency,  the  right  of  property  and  the  possession  continue  in  the  principal, 
and  a  disposal  of  the  property  would  be  a  violation  of  the  trust,  and  an  act  of 
embezzlement.  But  cases  of  commission  merchants,  auctioneers,  and  attorneys 
authorized  to  collect  demands,  stand  upon  a  ditlerent  footing  ;  and  a  failure  to  pay 
over  the  balance  due  to  their  employers,  upon  their  collections,  will  not,  under 
the  ordinary  circumstances  attending  such  agency,  subject  them  to  the  heavy 
penalties  consequent  upon  a  conviction  of  the  crime  of  embezzlement."  And  in 
Com.  V.  Stearns,  2  Metcalf,  343,  it  was  held  that  an  auctioneer,  who  receives 
money  on  the  sale  of  his  employer's  goods,  and  does  not  pay  it  over,  but 
misapplies  it,  is  not  such  an  agent  or  servant  as  is  intended  by  the  statute ; 
whether  he  receives  the  goods  for  sale  in  the  usual  mode,  or  receives  them  on  an 
agreement  to  pay  a  certain  sum  therefor,  within  a  specified  time  after  the  sale. 
See  TheFeople  v.  Allen,  5  Denio,  76.  By  "  the  money  or  property  of  another," 
in  the  statute,  is  meant  the  money  or  property  of  any  person  e.xcept  such  agent, 

428 


EMBEZZLEMENT.  (467a) 

of  S.,  being  then  and  there  the  clerk  of  one  J.  N".,  the  said  C. 
D.  not  being  then  and  there  an  apprentice  to  the  said  J.  !N".,  nor 
a  person  under  the  age  of  sixteen  years,  did  then  and  there,  by 
virtue  of  his  said  employment,  have,  receive,  and  take  into  his 
possession  certain  money,  to  a  large  amount,  to  wit,  to  the 
amount  of  one  thousand  dollars,  and  of  the  value  of  one  thou- 
sand dollars,  of  the  property  and  moneys  of  the  said  J.  IsT.,  the 
said  C.  D.'s  said  employer,  and  the  said  C.  D.  the  said  money 
then  and  there  feloniously  did  embezzle,  and  fraudulently  con- 
vert to  his  own  use,  without  the  consent  of  the  said  J.  N.,  the 
said  C.  D.'s  employer;  whereby,  and  by  force  of  the  statute  in 
such  case  made  and  provided,  the  said  C.  D.  is  deemed  to  have 
committed  the  crime  of  simple  larceny.  And  so  the  jurors 
aforesaid,  upon  their  oath  aforesaid,  do  say,  that  the  said  C.  D. 
then  and  there,  in  manner  and  form  aforesaid,  the  said  money 
of  the  property  and  moneys  of  the  said  J.  IST.,  the  said  C.  D.'s 
said  employer,  from  the  said  J.  K.  feloniously  did  steal,  take, 
and  carry  away;  against,  etc.,  and  contrary,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 

(467a)  Another  foi-m,  under  Mass.  Gen.  Stat.  ch.  161,  §  42. 

That  J.  N.,  etc.,  on,  etc.,  at,  etc.,  being  then  and  there  the  clerk, 
servant,  and  agent  of  G,  G.  P.  and  E.  W.  "W.,  said  P.  and  W. 
then  and  there  being  copartners  in  business  (the  said  B.  not 
being  then  and  there  an  apprentice  to  the  said  P.  and  W.,  or  to 
either  of  them,  and  not  being  then  and  there  a  person  under  the 
age  of  sixteen  years),  did  then  and  there,  by  virtue  of  his  said 
employment,  have,  receive,  and  take  into  his  possession  certain 
money  to  the  amount  and  of  the  value  of  twenty-five  thousand 
dollars,  of  the  said  P.  and  W.,  as  such  copartners,  the  said  em- 
ployers of  the  said  B. ;  and  tliat  the  said  B.,  the  said  money  so 
by  him  had,  received,  and  possessed,  then  and  there  feloniously 
did  embezzle  and  fraudulently  convert  to  his  own  use,  without 
the  consent  of  the  said  emplo^'ers,  or  either  of  them  ;  whereby, 
and  by  force  of  the  statute  in  such  case  made  and  provided,  the 

clerk,  or  servant  -who  embezzles  it.  A  difTerent  construction  woiilfl  leave  unpro- 
vided I'or  all  cases  of  embezzlement,  by  servants  or  airents,  of"  the  pro])(>rf}-  ni' 
their  masters  or  their  principals.  Com.  v.  Stearns,  2  Mete.  343.  See  also  The 
People  17.  Hennessey,  11  Wendell,  147. 

429 


(468)  OFFENCES    AGAINST    PROPERTY. 

said  B.  is  deemed  to  have  committed  the  crime  of  simple  lar- 
ceny. And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  say,  that  the  said  B.  then  and  there,  in  manner  and  form 
aforesaid,  the  said  money,  of  the  property  and  moneys  of  the 
said  P.  and  W.,  feloniously  did  steal,  take,  and  carry  away, 
against  the  law,  etc.(i)     {Conclude  as  in  book  1,  chapter  3.) 

(468)  Against  a  carrier  for  embezzlement.     Rev.  Sis.  of  31ass.  ch. 

126,  §  30.(i) 

That  one  J.  IST.,  on  the  first  day  of  June,  in  the  year  of  our 
Lord  at  F.,  in  the  county  of  M.,  did  deliver  to  one  J.  S., 

late  of,  etc.,  the  said  J.  S.  being  then  and  there  a  carrier,  a  cer- 
tain large  sum  of  money,  to  wit,  the  sum  of  one  thousand  dol- 
lars, and  of  the  value  of  one  thousand  dollars,  of  the  property 
and  moneys  of  the  said  J,  E^.,  to  be  carried  by  the  said  J.  S.,  for 
hire,  to  wit,  for  the  sum  of  two  dollars,  and  to  be  delivered  by 
the  said  J.  S.,  for  the  said  J.  N.,  and  by  the  said  J.  N.  sent  and 
directed  to  one  C.  D.,  at  B.,  in  the  county  of  S. ;  and  that  the 
said  J.  S.  did,  by  virtue  of  his  said  employment  as  a  carrier,  at 
F.  aforesaid,  in  the  <;ounty  aforesaid,  and  while  he  was  so  em- 
ployed as  aforesaid,  take  into  his  possession  said  money  to  be 
carried  and  delivered  as  aforesaid,  and  that  the  said  J.  S.,  car- 
rier as  aforesaid,  afterwards,  to  wit,  on  the  first  day  of  June,  in 
the  year  of  our  Lord  at  F.,  in  the  county  of  M.,  and  before 
the  money  so  delivered  to  him  as  aforesaid  was  by  the  said  J.  S, 
delivered  to  the  said  C.  I),  at  B.,  in  the  county  of  S.,  feloniously 
did  embezzle  and  fraudulently  convert  the  same  to  his  own  use ; 
whereby,  and  by  force  of  the  statute  in  such  case  made  and  pro- 
vided, the  said  J.  S.  is  deemed  to  have  committed  the  crime  of 
simple  larceny.  And  so  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  say,  that  the  said  J.  S.,  on  the  said  first  day  of 
June,  in  the  year  of  our  Lord  at  F.,  in  the  county  of  M., 

in  manner  and  form  aforesaid,  the  said  money,  the  property  of 
the  said  J.  N.,  from  the  said  J.  K.  feloniously  did  steal,  take, 

(t)   Sustained  in  Com.  v.  Bennett,  118  Mass.  443. 

(  /)  Tr.  &  Heard  Free.  191.  Under  the  statute  of  Maine,  if  a  person,  to  whom 
property  is  intrusted  in  IMaine  to  be  carried  for  hire,  and  delivered  in  another 
state,  shall,  before  such  delivery,  fraudulently  convert  the  same  to  his  own  use, 
the  crime  is  punishable  in  IMaine,  whether  the  act  of  conversion  be  in  that  state 
or  another.     State  v.  Haskell,  33  Me.  127. 

430 


EMBEZZLEMENT.  (469) 

and  carry  away,  against,  etc.,  and  contrary,  etc.     {Conclude  as  in 
book  1,  chapter  3.) 

(468a)  Against  bailee  for  embezzlement  under  Mass.  Gen.  statute. 

That  B.  (the  defendant)  on,  etc.,  did  embezzle  and  fraudulently 
convert  to  his  own  use,  divers  promissory  notes,  payable  to  the 
bearer  on  demand,  current  as  money  in  said  commonwealth,  of 
the  amount  and  of  the  value  of  sixty-five  dollars,  a  more  par- 
ticular description  of  which  is  to  the  jurors  unknown,  of  the 
property,  moneys,  goods,  and  chattels  of  one  H.  S.,  the  said  pro- 
missory notes  being  then  and  there  the  subject  of  larceny,  and 
the  said  promissory  notes  having  theretofore,  to  wit,  on,  etc., 
been  there  delivered  to  the  said  B.  by  the  said  S.,  in  the  trust 
and  confidence  and  with  the  direction  that  the  said  B.  would 
and  should  return  said  promissory  notes  to  the  said  S.,  upon 
demand,  and  the  said  promissory  notes  and  each  thereof  having 
been  then  and  there  received  by  the  said  B.  in  the  said  trust 
and  confidence  and  with  the  said  direction. (A-)  {Conclude  as  in 
book  1,  chapter  3.) 

(469)  Embezzlement  by  clerk  or  servant,  in  England.iJ) 

That  J.  S.,  etc.,  on,  etc.,  at,  etc.,  being  then  and  there  employed 
as  clerk  ("clerk  or  servant,  or  any  person  employed  for  that  pur- 
pose, or  in  the  capacity  of  a  clerk  or  servant"),  to  J.  N.,  did,  by 
virtue  of  his  said  employment,  then  and  there,  and  whilst  he 

(Jc)  On  the  trial  of  the  above  indictment,  it  appearing  by  the  evidence  that  the 
notes  were  of  the  amount  and  vakie  of  !5  70,  and  wci-e  known  so  to  be  by  the  grand 
jury,  this  was  held  no  variance.  It  was  held  also,  that  the  indictment  was  not 
bad  for  failure  to  aver  that  the  goods  were  to  be  returned  upon  the  demand  of 
H.  S.,  or  that  H.  S.  did  demand  them.     Com.  v.  Hussey,  111  Mass.  432. 

(/)   Archbold's  C.  P.  5th  Am.  ed.  329. 

This  form  is  drawn  upon  the  statutes  7  &  8  Geo.  IV.  c.  29,  s.  47,  which,  for 
the  punishment  of  embezzlements  committed  by  clerks  or  servants,  declares  and 
enacts,  that  if  any  clerk  or  servant,  or  any  person  employed  for  the  ]Mn-j)ose  or 
in  the  capacity  of  a  clerk  or  servant,  shall,  by  virtue  of  sucli  employment,  receive 
or  take  into  his  possession  any  chattel,  money,  or  valuable  security,  for  or  in  the 
name  or  on  the  account  of  his  master,  and  sliall  fraudulently  embezzle  the  same 
or  any  part  thereof,  every  such  offender  shall  be  deemed  to  have  feloniously 
stolen  the  same  from  his  master,  although  such  chattel,  money,  or  security  was 
not  received  into  the  possession  of  such  master  otherwise  than  by  the  actual  pos- 
session of  his  clerk,  servant,  or  other  person  so  employed  ;  and  every  such 
offender,  being  convicted  thereof,  shall  be  liable  at  the  discretion  of  the  court, 
to  any  of  tlie  punishments  which  the  court  may  award  as  hereinbelbre  last  men- 
tioned. 

431 


(469a)  OFFENCES    AGAINST   PROPERTY, 

was  SO  employed  as  aforesaid,  receive  and  take  into  his  posses- 
sion certain  money  ("chattel,  money,  or  valuable  8ecurity"),(r/i) 
to  a  large  amount,  to  wit,  to  the  amount  of  ten  pounds,  for  and 
in  the  name  and  on  the  account  of  the  said  J.  N.,  his  master, 
and  the  said  money  then  and  there  fraudulently  and  feloniously 
did  embezzle;  and  so  the  jurors,  etc.,  do  say,  that  the  said  J.  S., 
on,  etc.,  at,  etc.,  then  and  there,  in  manner  and  form  aforesaid, 
the  said  money,  the  property  of  the  said  J.  N.,  his  said  master, 
from  the  said  J.  N.  feloniously  did  steal,  take,  and  carry  away, 
against,  etc.,  and  against,  etc.     {Conclude  as  in.  book  1,  chapter  3.) 

{If  the  prisoner  has  been  guilty  of  other  acts  of  embezzlement 
within  the  i)eriod  of  six  months,  add  the  folloioing)'. 

That  the  said  J.  S.,  on,  etc ,  at,  etc.,  afterwards,  and  within 
six  calendar  months  from  the  time  of  the  committing  of  the 
said  offence  in  the  first  count  of  this  indictment  charged  and 
stated,  to  wit,  on  the  day  of  in  the  year  aforesaid, 

at  the  parish  aforesaid,  in  the  county  aforesaid,  being  then  and 
there  employed  as  clerk  to  the  said  J.  IST.,  did,  by  virtue  of  such 
last  mentioned  employment,  then  and  tliere,  and  whilst  he  was 
so  employed  as  last  aforesaid,  receive  and  take  into  his  possession 
certain  other  money  to  a  large  amount,  to  wit,  to  the  amount  of 
ten  pounds,  for  and  in  the  name  and  on  the  account  of  the  said 
J.  N.,  his  said  master,  and  the  said  last  mentioned  money  then 
and  there,  within  the  said  six  calendar  months,  fraudulently  and 
feloniously  did  embezzle,  and  so,  etc.  {as  in  the  first  count  to  the 
end). 

(469a)  Another  form. 

That  J.  S.,  late,  etc.,  on,  etc.,  at,  etc.,  was  clerk  (or  servant)  to 
J.  IST.,  of,  etc.  {or  was  employed  by  J.  N.),  and  that  the  said  J.  S., 
whilst  he  was  such  clerk  {or  servant)  to  the  said  J.  N.  as  afore- 
said {or  was  so  employed  by  the  said  J.  N.  as  aforesaid),  to  wit, 
on  the  day  and  year  aforesaid,  certain  money  to  the  amount  of 
ten  pounds  {describing  articles),  belonging  to  the  said  J.  N.  his 
master  {or  employer,  varying  with  statute),  feloniously  did  steal, 
take,  and  carry  away,  against,  etc.(7?)  {Conclude  as  in  book  1, 
chapter  3.) 

(m)   See  7  &  8  Geo.  IV.  c.  29,  s.  5. 
(n)   Arch.  C.  P.  lOth  ed.  p.  383. 

432 


EMBEZZLEMENT.  (469^/) 

(4696)  Another  form  under  24  and  25  VicL,  c.  96. 

That  J.  S.,  on,  etc.,  at,  etc.,  being  then  employed  as  clerk  (or 
servant)  to  J.  E".,  did  then,  and  whilst  he  was  so  employed  as 
aforesaid,  receive  and  take  into  his  possession  certain  money  to 
a  large  amount,  to  wit,  etc.,  for  and  in  the  name  and  on  the 
account  of  the  said  J.  N".  his  master  (or  employer),  and  the  said 
money  then  (and  there)  fraudulently  and  feloniously  did  em- 
bezzle; and  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
say,  that  the  said  J.  S.,  then,  in  manner  and  form  aforesaid,  the 
said  money,  the  property  of  the  said  J.  E".  his  said  master  (or 
employer),  feloniously  did  steal,  take,  and  carry  away,  against, 
etc.(o)     (^Conclude  as  in  book  1,  chajJter  3.) 

(469c)  Against  hanker  under  English  statute  for  conversion  of  money 
given  him  for  specific  'purposes. 

That,  on,  etc.,  at,  etc.,  J.  N.  did  intrust  J.  S.  as  a  banker  (or 
broker  or  other  agent)  with  a  certain  large  sum  of  money,  to 
wit,  etc.,  with  a  direction  to  the  said  J.  S.  in  writing,  to  pay  the 
said  sum  of  money  to  a  certain  person  specified  in  the  said 
direction ;  and  that  the  said  J.  S.,  banker  as  aforesaid,  after- 
wards, to  wit,  etc.,  in  violation  of  good  faith,  and  contrary  to 
the  terms  of  the  said  direction,  unlawfully  did  convert  to  his 
own  use  and  benefit  the  said  sura  of  money,  so  to  him  intrusted 
as  aforesaid,  against,  Qtc.(p)    (Conclude  as  in  book  1,  chapter  3.) 

(469(i)  Against  hanker  for  misappropriating  goods  given  him  for 

safe-keeping. 

(Commencement  as  in  last  precedent) — J.  N^.  did  intrust  to  J.  S. 
as  a  banker  for  safe  custody,  a  promissory  note  (stating  chattel 
or  other  security)  of  one  J.  P.,  for  the  payment  of  without 
any  authority  to  him  the  said  J.  S.  to  sell,  negotiate,  transfer,  or 

(o)  Arch.  C.  P.  19th  ed.  p.  482.  Under  recent  statutes  "  money"  is  a  suffi- 
cient designation.  It  was  otherwise  previously.  R.  v.  Furneaux,  R.  &  R.  335; 
R.  V.  Tyers,  R.  &  R.  402.  But  "money"  is  not  sustained  by  proof  of  a  check. 
R.  V.  Keena,  L.  R.  1  C.  C.  113.  The  property  must  be  averred  to  be  in  tlie 
master.  R.  v.  McGregor,  3  B.  &  P.  lOG  ;  R.  &  R.  23  ;  R.  v.  Beacall,  1  Mood. 
C.  C.  15.  It  is  not  necessary  to  prove  from  whom  the  money  was  received.  R. 
V.  Beacall,  1  C.  &  P.  454.  It  must  appear  that  the  defendant  was  servant  at 
the  time.     R.  r.  Somerton,  7  B.  &  C.  463. 

(p)  Arch.  C.  P.  IDth  ed.  p.  500  ;  citing  R.  v.  Golde,  2  M.  &  Rob.  425. 

VOL.  I.— 28  483 


(469^)  OFFENCES  AGAINST  PROPERTY. 

pledge  the  said  promissory  note;  and  that  the  said  J.  S.,  banker 
as  aforesaid,  at,  etc.,  on,  etc.,  in  violation  of  good  faith,  and 
contrary  to  the  object  and  purpose  for  which  such  promissory 
note  was  intrusted  to  him  the  said  J.  S.  as  aforesaid,  unlawfully 
did  negotiate  and  convert  to  his  own  use  and  benefit  the  said 
promissory  note,  against,  etc.{q)    {Conclude  as  in  book  1,  chapter  3.) 

(469e)  Against  factor  under  English  statute. 

That,  etc.,  J.  jST.  did  intrust  to  J.  S.,  the  said  J.  S.  then  being 
a  factor  and  agent  of  him  the  said  J.  N.,  ten  bales  of  cotton 
(of  the  value  of  ) ;  and  that  the  said  J.  S.,  factor  and  agent 
as  aforesaid,  at,  etc.,  on,  etc.,  contrary  to  and  without  the  author- 
ity of  the  said  J.  N.,  for  his  own  use  and  benefit,  and  in  viola- 
tion of  good  faith,  unlawfully  did  make  a  deposit  of  the  said 
ten  bales  of  cotton  with  one  J.  P.,  as  and  by  way  of  a  pledge, 
lien,  and  security  for  a  certain  sum  of  money,  to  wit,  the  sum 
of  ten  pounds,  then  advanced  by  the  said  J.  P.  to  him  the  said 
J.  S.,  against,  etc.(r)     {Conclude  as  in  hook  1,  chapter  3.) 

(469/)  Against  trustee  under  English  statute. 

That,  before  and  at  the  time  of  the  committing  of  the  offences 
hereinafter  mentioned,  to  wit,  on,  etc.,  at,  etc.,  J.  S.  was  a  trustee 
of  certain  property,  to  wit  {stating  jjropertg),  wholly  {or  par- 
tially) for  the  benefit  of  J.  IST. ;  and  that  he,  the  said  J.  S.,  so 
being  such  trustee  as  aforesaid,  on,  etc.,  at,  etc.,  unlawfully  and 
wilfully  did  convert  and  appropriate  the  said  property  to  his 
own  use,  with  intent  thereby  then  to  defraud  (the  said  ), 

against,  etc.(s)     {Conclude  as  in  book  1,  chapter  3.) 

(469^)  Against  directors  of  public  comjmny  under  English  statute. 

That,  before  and  at  the  time  of  the  committing  of  the  offence 
hereinafter  mentioned,  J.  S.  was  a  director  {or  member,  or  public 
officer)  of  a  certain  public  company  {or  body  corporate)  called, 
etc. ;  and  that  he  the  said  J.  S.,  so  being  director  as  aforesaid, 
on,  etc.,  at,  etc.,  did  unlawfully  and  fraudulently  take  and  apply 

(q)  Arch.  C.  P.  19th  ed.  p.  502 ;  citing  R.  v.  Tiitlock,  2  Q.  B.  D.  15  ;  R.  v. 
Cooper,  L.  R.  2  C.  C.  123. 

(r)  Arch.  C.  P.  19th  ed.  p.  503. 

(«)  Arch.  C.  P.  19th  ed.  p.  505,  where  It  Is  advised  that  counts  be  added 
alleging  that  the  defendant  disposed  of  the  property,  or  destroyed  it. 

434 


EMBEZZLEMENT.  (469z) 

for  his  own  use  and  benefit  certain  money,  to  wit  {specifying),  of 
and  belonging  to  the  said  company,  against,  etc.(<)  {Conclude 
as  in  book  1,  chapter  3.) 

(469/()  Against  same  for  publishing  fraudulent  statements. 

{Commencement  as  in  last  form) — did  unhiwfully  circulate  and 
publish  a  certain  written  statement  and  account  which  said 
written  statement  and  account  was  false  in  certain  material 
particulars,  that  is  to  say,  in  this,  to  wit,  that  it  was  thereiii 
falsely  stated  that  {state  the  particulars)^  he  the  said  J.  S.  then 
well  knowing  the  said  written  statement  and  account  to  be  false 
in  the  several  particulars  aforesaid ;  with  intent  thereby  to  de- 
ceive and  defraud  J.  IST.,  then  and  there  being  a  shareholder  of 
the  said  public  company,  against,  etc.(M)  Conclude  as  in  book  1, 
chapter  3.) 

(469i)  Embezzlement  by  partner  under  English  statute. 

That  J.  S.,  etc.,  being  a  member  of  a  certain  copartnership  of 
persons  trading  under  the  name,  style,  and  title  of  the  A.  S.  and 
P.  C.  Soc,  did,  on,  etc.,  receive  into  his  possession  the  sum  of 
one  pound  and  one  shilling  in  money,  for  and  on  the  account  of 
the  said  copartnership,  and  fraudulently  and  feloniously  did  em- 
bezzle the  said  sum  of  money.     {Conclude  as  in  book  1,  chapter  3.) 

Tfie  second  count  charged  him  ivith  having  imthin  six  months  from 
the  offence  in  the  first  count,  that  is  to  say,  on,  etc.,  while  he  was  a 
member  of  the  said  copartnership,  received  on  account  of  the  said,  co- 
partnership the  further  sum  of  £1  Is.,  and  with  having  embezzled 
that  sum. 

The  third  count  charged  him  with  having  within  six  months  from 
the  offences  in  the  first  and  second  counts,  that  is  to  say,  on,  etc.,  while 
he  teas  a  member  of  the  said  copartnership,  received  on  account  of 
the  said  copartnership  the  further  sum  of  £1  bs.,  and  having  embez- 
zled that  sum.{v) 

(0   Arch.  C.  P.  19th  ed.  p.  509. 

(u)  Arch.  C.  P.  19th  ed.  p.  510.  It  is  advised  that  counts  be  added  statinc; 
the  intent  to  be  to  dec(uve  and  defraud  "  certain  persons  to  the  jurors  aforesaid 
unknown,  being  shareholders  of  the  said,"  etc.  ;  and  also  further  varying  this 
intent. 

(v)  Pt.  V.  Balls,  12  Cox  C.  C.  96  ;  L.  R.  1  C.  C.  328.  In  this  case  evidence 
was  given  that  during  a  certain  week  payments  of  ten  snudler  sums,  making  to- 
gether £1  Is.,  had  been  made  to  defendant,  and  tii.it  he  failed  to  account  for 

435 


(469J)  OFFENCES   AGAINST   PROPERTY. 

(469J)  Embezzlement  under  English  statute^  hy  constable^  etc. 

That  the  prisoner,  on,  etc.,  being  then  employed  in  the  public 
service  of  the  queen,  and  being  a  constable  and  a  person  employed 
in  the  police  force  of  the  borough  of  L.,  and  entrusted  by  virtue 
of  such  employment  with  the  receipt  and  custody  of  money  the 
property  of  the  queen,  did,  by  virtue  of  his  said  employment, 
and  whilst  he  was  so  employed,  receive  and  have  in  his  posses- 
sion and  was  entrusted  with  certain  money  the  property  of  the 
queen,  to  wit,  to  the  amount  of  one  pound  and  six  shillings,  for 
and  on  account  of  the  public  service  of  the  queen,  and  then 
fraudulently  and  feloniously  did  apply  the  said  money  to  his 
own  use  and  benefit,  and  fraudulently  and  feloniously  did  steal 
the  said  last  mentioned  money,  being  the  property  of  the  queen, 
from  the  queen,  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

Second  count. 

That  prisoner  afterwards,  and  within  six  calendar  months  of 
his  committing  the  oftence  in  the  first  count  mentioned,  to  wit, 
on,  etc.,  being  then  employed,  etc.,  and  being  a  constable,  etc., 
and  entrusted,  etc.  {as  in  the  first  count).,  did,  by  virtue  of  such 
employment  and  whilst  he  was  so  employed,  receive  and  have  in 
bis  possession  and  was  entrusted  with  certain  money  the  pro- 
perty of  the  queen,  and  then  fraudulently  and  feloniously  did 
apply  the  said  last  mentioned  money  to  his  own  use  and  benefit, 
and  did  fraudulently  and  feloniously  steal  the  same,  being  the 
property  of  the  queen,  from  the  queen,  against,  etc.  (^Conclude 
as  in  book  1,  chapter  3.) 

Tfdrd  count. 

That  prisoner  afterwards,  and  within  six  calendar  months  of 
his  committing  the  offence  in  the  first  count  mentioned,  to  wit, 
on,  etc.,  being  then  employed,  etc.,  and  being  a  constable,  etc., 
and  entrusted,  etc.  (as  in  the  first  count),  did  by  virtue  of  his 

those  sums,  or  for  any  specific  sum  of  £1  Is.  It  was  held,  that  the  indictment 
might  properly  charge  the  embezzlement  of  a  gross  sum,  and  he  proved  by  evi- 
dence similar  to  the  above,  and  that  it  was  not  necessary  to  charge  the  embezzle- 
ment of  each  particular  sum  composing  the  gross  sum,  and  that,  although  the 
evidence  might  show  a  large  number  of  small  sums  embezzled,  the  prosecution 
was  not  to  be  confined  to  the  proof  of  such  small  sums  only.  See  Wh.  Cr.  L. 
8th  ed. §  104. 

436 


EMBEZZLEMENT.  (469^) 

said  employment,  and  whilst  he  was  so  employed,  receive  and 
have  in  his  possession  and  was  entrusted  with  certain  money, 
the  property  of  the  queen,  to  wit,  the  amount  of  18s.,  as  and  on 
account  of  the  public  service  of  the  queen,  and  then  fraudulently 
and  feloniously  did  apply  the  said  last  mentioned  money  to  his 
own  use  and  benefit,  and  did  fraudulently  and  feloniously  steal 
the  same,  being  the  property  of  the  queen,  from  the  queen, 
against,  etc.(w7)     {Conclude  as  in  hook  1,  chapter  3.) 

(469Z;)  Fraudulent  bankruptcy  in  England. 

The  jurors  for,  etc.,  upon  their  oath  present,  that  heretofore, 
and  before  the  committing  hereinafter  mentioned,  to  wit,  on, 
etc.,  a  bankruptcy  petition  was  presented  against  P.  C,  and  the 
said  P.  C.  was  thereupon,  to  wit,  on,  etc.,  adjudged  a  bankrupt ; 
and  that  the  said  P.  C,  within  four  months  next  before  the 
presentation  of  the  said  bankruptcy  petition  against  him,  to 
wit,  on,  etc.,  by  the  false  representation  to  one  M.  B.,  that  he 
the  said  P.  C.  was  then  buying  the  property  hereinafter  men- 
tioned, in  part  fulfilment  of  an  order  for  sixty  bales,  and  that 
he  had  funds  in  hand  to  pay  for  it,  or  an  equivalent  to  funds, 
did  obtain,  from  the  said  M.  B.,  property,  to  wit,  twenty-five 
bales  of  cotton,  and  has  not  paid  for  the  same,  whereas  in  truth 
and  in  fact  the  said  P.  C.  was  not  then  buying  the  said  prop- 
erty in  part  fulfilment  of  an  order  for  sixty  bales,  and  had  not 
funds  in  hand  to  pay  for  it,  and  had  not  an  equivalent  to  funds, 
as  he  the  said  P.  C.  well  knew  when  he  made  such  false  repre- 
sentations as  aforesaid,  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(?r)  This  wus  sustained  in  R.  v.  Graham,  13  Cox  C.  C.  57.  A.,  the  prosecutor 
in  tills  case,  an  inspector  of  prisons,  duly  authorized  to  receivi^  the  conti'ibu- 
tions  of  parents  towards  the  maintenance  of  their  children  committed  to  relbnna- 
tory  and  industrial  schools  under  29  &  30  Vict.  cc.  117,  118,  and  instructed  to 
pay  the  amount  received  into  the  Bank  of  England,  to  the  credit  of  the  jiaynia^ter- 
general,  employed  the  prisoner,  a  member  of  the  police  force  of  the  borougli  of 
L.,  as  his  agent  in  taking  proceedings  against  the  parents  of  suchchildi-en  for  the 
recovery  of  such  contributions  on  A.'s  behalf,  and  for  generally  carrying  out  the 
provisions  of  the  reformatory  and  industrial  schools  act.  Under  this  emjdoy- 
ment,  which  was  sanctioned  by  tlie  treasury  department,  the  prisoner  received 
and  misajtjjropriated  moneys,  the  contributions  of  parents,  ordered  by  magistrates 
to  be  paid  for  the  maintenance  of  their  children  in  tlie  schools.  It  was  held,  that 
the  prisoner  was,  while  so  employed,  in  the  public  service,  so  as  to  be  within  the 
statute. 

437 


(469^)  OFFENCES  AGAINST  PROPERTY. 

Second  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  heretofore,  and  before  the  committing  of  the 
offence  hereinafter  mentioned,  to  wit,  on,  etc.,  a  bankruptcy 
petition  was  presented  against  the  said  P.  C,  and  the  said  P. 
C.  was  thereupon,  to  wit,  on,  etc.,  adjudged  bankrupt;  and 
that  the  said  P.  C,  within  four  months  next  before  the  presenta- 
tion of  the  said  petition  against  him,  to  wit,  on,  etc.,  by  the 
false  representation  to  the  said  M.  B.,  that  he,  the  said  P.  C, 
who  was  then  carrying  on  business  as  a  cotton  broker,  was 
then  buying  the  property  hereinafter  mentioned  as  a  broker, 
acting  on  behalf  of  a  principal,  did  obtain  from  the  said  M.  B. 
property,  to  wit,  twenty-five  bales  of  cotton,  on  credit,  and  has 
not  paid  for  the  same,  whereas  in  truth  and  in  fact  the  said  P. 
C.  was  not  then  buying  the  said  property  as  broker  acting  on 
behalf  of  a  principal,  as  he,  the  said  P.  C,  well  knew  at  the 
time  when  he  made  such  false  representation  as  aforesaid, 
against,  etc.     {Conclude  as  in  hook  1,  chapter  S.) 

Third  count. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  heretofore,  and  before  the  committing  of  the 
offence  hereinafter  mentioned,  to  wit,  on,  etc.,  a  bankruptcy 
petition  was  j)resented  against  the  said  P.  C. ;  and  the  said  P. 
C,  within  four  months  next  before  the  presentation  of  the  said 
bankruptcy  petition  against  him,  to  wit,  on,  etc.,  being  a  trader, 
to  wit,  a  cotton  broker,  obtained  from  the  said  M.  B.,  under  the 
false  pretence  of  carrying  on  business  dealing  in  the  ordinary 
way  of  his  said  trade,  certain  property,  to  wit,  twenty-five  bales 
of  cotton,  on  credit,  and  has  not  paid  for  the  same,  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

Fourth  count. 
And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present,  that  heretofore,  and  before  the  committing  of  the 
offence  hereinafter  mentioned,  to  wit,  on,  etc.,  a  bankruptcy 
petition  was  presented  against  the  said  P.  C,  and  the  said  P. 
C.  was  thereupon,  to  wit,  on,  etc.,  adjudged  bankrupt;  and 
438 


EMBEZZLEMENT. 


(4690 


that  the  said  P.  C,  within  four  months  next  before  the  pre- 
sentation of  the  said  bankruptcy  petition  against  him,  to  wit, 
on,  etc.,  being  a  trader,  to  wit,  a  cotton  broker,  with  in- 
tent to  defraud,  obtained  from  the  said  M.  B.,  under  the  false 
pretence  of  carrying  on  business  in  the  ordinary  way  of  his 
trade,  property,  to  wit,  twenty-five  bales  of  cotton,  on  credit, 
and  has  not  paid  for  the  same,  against,  ete.(x)  {Conclude  as  in 
book  1,  chapter  3.) 

(469^  Ticket  scalping^  under  Pennsylvania  statute. 
First  count.     Setting  out  ticket. 

That  A.  W.,  iate  of  the  said  county,  yeoman,  on  the  twenty- 
eighth  day  of  July,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  eighty,  at  the  county  aforesaid,  and  within  the 
jurisdiction  of  this  court,  with  force  and  arms,  etc.,  for  and  in 
consideration  of  the  price  and  sum  of  nine  dollars,  lawful 
money  of  the  United  States  of  America,  paid  to  him  the  said 
A.  W.  by  one  G.  G.  B.,  did  then  and  there  unlawfully  sell,  bar- 
ter, and  transfer  to  the  said  G.  G.  B.  the  whole  of  a  certain 
ticket,  pass,  and  evidence  of  the  holder's  title  to  travel  on  the 
Pennsylvania  Railroad  then  and  there  situate,  which  said  ticket 
and  pass  is  in  the  words  and  figures  following,  that  is  to  say : — 


PENNSYLVANIA  RAILROAD  COMPANY. 


THIS  TICKET  ENTITLES  THE  HOLDER 

TO 

One  First-cLass  passage  to 
PITTSBURGH,   PENNA. 

This  ticket  is  void  unless  officially  stamped  and  dated.  In 
selling  this  ticket  for  passage  over  other  roads  this  company- 
acts  only  as  agent,  and  assumes  no  responsihility  beyond  its 
own  line.  This  company  assumes  no  risks  on  baggage  except 
for  wearing  apparel,  and  limits  its  responsibility  to  one  hun- 
dred dollars  in  value.  All  baggage  exceeding  that  value  will 
be  at  the  risk  of  the  owner  unless  taken  by  special  contract. 
The  check  belonging  to  this  ticket  will  be  void  if  detached. 
30  31  L.  P.  FARMER, 

40  104  Gen'l  Passenger  Agent. 


O 

o 

< 
O 

< 
P5 

> 


30  31 


be 

PU  i-i 

a 
O 


"3 

a'  o 

og  in 

rn  o 

H  CO 


^M    t! 


40  104 


{x)  This  indictment  was  sustained  in  K.  v.  Cherry,  12  Cox  C.  C.  32. 

439 


(469/)  OFFENCES    AGAINST    PROPERTY. 

And  stamped  and  endorsed  on  the  back  thereof — 


d 

O 

"^ 

Iroad 
ON. 

Pi 

3^N 

ca      « 

a 

a 

rt 

«® 

(1h 

Pi 

. 

Ti 

C/J 

c5 

o 

o 

'rt 

bD 

P^ 

> 

<D 

;=; 

1— 

tc 

Ph 

GO 

o 

^c« 

6 

iH 

1 

Q  ^ 

'S  1- 

CD    U 

« 

spa 

eS 

C 

cj 

aj 

Ph 

Ph 

He  the  said  A.  W.,  then  and  there,  not  being  an  agent  and 
person  in  the  employ  of  the  said  Pennsylvania  Railroad  Com- 
pany, and  then  and  there,  not  being  an  agent  and  person  pos- 
sessed of  and  provided  with  a  certificate  duly  attested  by  the 
corporate  seal  of  the  said  Pennsylvania  Railroad  Company,  and 
by  the  signatures  of  the  officers  whose  names  were  then  and 
there  signed  upon  the  said  ticket  and  pass,  setting  forth  the 
authority  of  him,  the  said  A.  W.,  as  such  agent  of  the  said 
Pennsylvania  Railroad  Company  to  make  sales  of  tickets  and 
other  certificates  entitling  the  holder  to  travel  upon  the  said 
Pennsylvania  Railroad,  contrary,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

Second  count.     Not  setting  out  ticket. 

That  the  said  A.  W.,  late  of  the  said  county,  yeoman,  on  the 
said  twenty-eighth  day  of  July,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  eighty,  at  the  county  aforesaid,  and 
within  the  jurisdiction  of  this  court,  for  and  in  consideration 
of  the  price  and  sum  of  nine  dollars,  lawful  money  of  the 
United  States  of  America,  paid  to  him,  the  said  A.  W.,  by  the 
said  G.  G.  B.,  did  then  and  there  unlawfully  sell,  barter,  and 
transfer  to  the  said  G.  G.  B.  the  whole  of  a  certain  ticket,  pass, 
and  evidence  of  the  holder's  title  to  travel  on  the  Pennsylvania 
Railroad  to  Pittsburgh,  in  the  said  commonwealth  of  Pennsyl- 
vania, he,  the  said  A.  W.,  then  and  there,  not  being  an  agent 
and  person  in  the  employ  of  the  said  Pennsylvania  Railroad 
Company,  and  then  and  there,  not  being  an  agent  and  person 
possessed  of  and  provided  with  a  certificate  duly  attested  by  the 
corporate  seal  of  the  said  Pennsylvania  Railroad  Company,  and 
by  the  signatures  of  the  officers  whose  names  were  then  and 
440 


EMBEZZLEMENT.  (469/) 

there  signed  upon  the  said  ticket  and  pass,  setting  forth  the 
authority  of  hira,  the  said  A.  W.,  as  such  agent  of  the  said 
Pennsylvania  Raih'oad  Company,  to  make  sales  of  tickets  and 
other  certificates  entitling  the  holder  to  travel  upon  the  said 
Pennsylvania  Eailroad,  contrary,  etc.(?/)  {Conclude  as  in  book 
1,  chapter  3.) 

(?/)  Com.  V.  Wilson,  Phil.  Qiiar.  Ses.,  Legal  Intel.,  Dec.  10,  1880.  In  this  case 
there  was  a  demurrer  to  the  evidence  interposed  by  the  defendant.  On  this  de- 
murrer there  Avas  a  judgment  for  the  commonwealth.  The  opinion  of  the  court 
was  given  by  Ludlow,  P.  J.,  who,  after  stating  the  statute,  proceeded  : — 

"  in  the  view  which  we  take  of  this  case  and  of  the  facts  proved,  it  is  unneces- 
sary to  decide  how  far  the  legislature  may  restrict  the  right  of  an  individual  to 
sell  a  single  ticket  bought  here  or  in  another  state,  and  make  it  criminal  for  that 
individual  so  to  do ;  much  of  the  reasoning  which  follows  may  apply  to  such  a 
case,  but  that  is  not  the  cause  developed  by  the  evidence,  for  here  the  testimony 
produced  presents  the  case  of  one  who  has  established  a  business  in  Philadelphia, 
the  whole  object  of  which  is  to  trade  in  railroad  tickets ;  he  is,  in  fact,  a  '  ticket 
broker.' 

"  Tliis  law  is  attacked  because  It  violates  the  provisions  of  the  constitution  of 
the  United  States,  in  that  it  deprives  a  person  of  his  property  without  due  pro- 
cess of  law ;  abridges  the  privileges  and  immunities  of  citizens  of  the  United 
States ;  interferes  with  the  right  of  congress  to  regulate  commerce  with  foreign 
nations  and  among  the  several  states  ;   and  impairs  the  obligation  of  contracts. 

"And  the  act  is,  as  is  argued,  unlawful  under  our  own  and  the  federal  con- 
stitution, in  that  it  creates  a  monopoly  in  lawful  business,  and  is  an  assumption  of 
power  not  legislative  in  its  nature. 

"It  is  not  true  that  this  act  of  assembly  deprives  a  person  of  his  property 
without  due  process  of  law,  for  by  the  very  terms  of  the  act  the  unused  portion 
of  any  ticket  may  be  sold  to  the  company  which  issued  it,  '  and  it  shall  be  the  duty 
of  said  company  to  pay,  for  such  unused  portion  of  the  ticket,  the  difference  between 
the  actual  fare  to  the  point  used,  and  tlie  amount  paid  for  such  ticket.'  Here  the 
owner  of  the  ticket  is  simply  limited  in  the  sale  of  tiie  ticket  to  the  company  from 
which  he  bought  the  same,  and  is  not  deprived  of  it,  or  his  property  in  it ;  and  if 
the  legislature  may  upon  any  valid  ground  (a  point  to  be  hereafter  considered) 
thus  limit  a  right,  the  law  sins  not  against  the  clause  in  the  constitution  referred 
to.  But  it  is  said  that  this  law  abridges  the  privileges  and  immunities  of  citizens 
of  the  United  States.  Upon  the  facts  admitted  here,  what  privilege  or  imumuity 
of  this  defendant  has  been  abridged  ?  His  right  to  establish  a  certain  business, 
whicli  tlie  legislature  lias  declared  to  be,  in  the  preamble,  the  cause  of  '  numerous 
frauds,'  has  been  curtailed,  and  it  may  be  destroyed;  but  is  this  an  abridgment 
of  '  immunity  or  privilege'  within  the  meaning  of  the  constitution  of  the  United 
States  ?  In  a  state  of  nature  a  man  may  establish  any  business  injurious  to  health 
he  pleases;  he  may,  unless  restrained  somehow,  destroy  at  will  all  wlio  deal  with 
him.  In  a  state  of  nature  men  may  store  ginipowder  in  dangerous  places,  sell 
tainted  meat,  liijuor  without  ins[)ection  and  license,  set  up  gambling  houses  and 
houses  of  ill-fame,  and  do  numerous  other  acts  which  any  thinking  man  may 
imagine;  but  civilized  men,  living  under  a  benign  government,  easily  recognize 
the  principle  tliat  rights  and  duties  are  reciprocal,  and  that  these  may  grow  out 
of  the  very  fact,  that  men  STirrender  a  portion  of  their  natural  rights,  in  order 
that  they  may  live  together  in  civilized  countries,  under  a  common  rule  of  action 
called  the  law. 

"This  principle  was  embodied  in  an  authoritative  declaration  of  the  law  by 
the  court,  in  Cortield  v.  Coryell,  4  Washington  C.  C.  371,  where  the  meaning  of 

441 


(4690 


OFFENCES    AGAINST    PROPERTY. 


the  words  now  under  consideration  claimed  and  received  the  attention  of  the 
court : — 

"' We  feel  no  hesitation  In  confining  these  expressions  to  privileges  and  im- 
munities which  are  fundamental Among  these  are  protection  by 

the  government  of  the  right  to  acquire  and  possess  property  of  every  kind,  and  to 
pursue  and  obtain  happiness  and  safety,  subject,  nevertheless,  to  such  restraints 
as  the  (jorernment  mcnj  prescribe  for  the  general  good  of  the  ichole.' 

"If  the  clause  in  tlie  constitution  Is  to  receive  the  construction  contended  for 
in  this  case,  then  all  the  laws  above  referred  to,  and  many  others  which  might  be 
named,  which,  under  a  well-known  principle  (to  be  hereafter  specified),  have 
been  sustained,  must  be  in  contllct  with  the  constitution  of  the  United  States, 
because  the  citizens'  privileges  and  immunities  have  been  destroyed  or  '  abridged,' 
and  are  void.  To  state  such  a  result  is  to  answer  the  argument  made  in  this 
case  upon  this  point.  But  it  is  argued  that  the  act  of  assembly  impairs  the  ob- 
ligation of  a  contract.  The  ticket  sold  In  this  case  was  simply,  at  best,  the  evi- 
dence of  a  contract,  and  not  the  contract  Itself.  For  convenience  these  tickets 
have  been  introduced,  and  the  person  who  presents  the  ticket  exhibits  a  card 
in  the  nature  of  a  receipt ;  before  this  ticket  was  sold  the  act  of  assembly  was 
passed,  and  when,  therefore,  the  contract  itself  was  made,  this  defendant  must 
be  presumed  to  have  known  that  to  contract  with  any  one  who  was  not  an  author- 
ized agent  of  the  company  which  had  sold  the  ticket  was  a  criminal  act. 

"  The  question  in  my  mind  is,  not  what  was  the  contract  made  by  the  original 
holder  of  the  ticket  with  tlie  company  In  Boston,  but  what  was  the  contract  made 
in  this  jurisdiction.  Was  or  was  not  that  a  contract  prohibited  by  law?  If  the 
state  can,  for  any  legal  reason,  limit  or  restrain  the  sale  of  these  receipts,  then 
any  contract  made  Is  Illegal  and  void,  and  no  obligation  is  'impaired'  under  the 
constitution  of  the  United  States,  for  none  legally  existed  or  could  exist. 

"The  last  point  made  and  ably  argued  by  the  learned  counsel  for  defendant, 
Mr.  Hepburn,  will  develop  the  true  principle  upon  which  this  law  must  be  sus- 
tained, and  will  moreover  develop  and  illustrate  the  admirable  manner  in  Avhich, 
upon  a  true  interpretation  of  the  law,  the  constitution  of  the  United  States,  and 
the  sovereign  authority  of  the  individual  states,  may  not  only  be  harmonized, 
but  made  etfective,  under  our  delicate  and  complicated  system  of  government. 

"  By  Article  X.  of  the  amendments  to  the  constitution  of  tlie  United  States,  it 
is  expressly  provided,  '  That  the  powers  not  delegated  to  the  United  States  by 
the  constitution,  nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states 
respectively  or  to  the  people.' 

"In  the  case  of  the  Railroad  Co.  v.  Husen,  5  Otto,  4G5,  the  supreme  court  of 
the  United  States  declares,  '  We  admit  that  the  deposit  in  congress  of  the  power 
to  regulate  foreign  commerce,  and  commerce  among  the  states,  was  not  a  sur- 
render of  that  which  may  properly  be  denominated  police  power.  What  that 
power  is  It  Is  difficult  to  define  with  sharp  precision.  It  Is  generally  said  to  ex- 
tend to  making  regulations  promotive  of  domestic  order,  morals,  health,  and 
safety.  ...  It  may  be  admitted  that  the  police  power  of  a  state  justifies 
the  adoption  of  precautionary  measures  against  social  evils.  Under  it  a  state 
may  legislate  to  prevent  the  spread  of  crime,  pauperism,  or  disturbance  of  the 
peace. ' 

"No  state  legislature  may  with  Impunity  interfere  with  the  power  which  con- 
gress possesses  'to  regulate  commerce  with  foreign  nations  and  among  the  several 
states.'  Why  ?  Because  tliis  power  has  been  directly  vested  In  congress  by  the 
several  states  and  the  people  thereof. 

"  Any  obstacle  to  commerce  or  burden  laid  upon  It  Is,  by  the  authority  of  the 
supreme  court  of  the  United  States,  from  the  leading  case  of  Gibbons  i'.  Ogden, 
9  Wheaton,  1,  to  the  present  time,  unconstitutional  and  void.  To  fall,  however, 
witliin  the  ])rohibition,  the  law  must  be  an  obstacle  or  a  burden  within  the  mean- 
ing of  the  rlecislon  of  the  supreme  court  of  the  United  States. 

"Can  it  be  contended  that  a  law  which  prohibits  that  which  has  become  a 
fruitful  source  of  crime  is  an  obstacle  or  burden  to  commerce  between  the  states? 

442 


EMBEZZLEMENT.  (469^) 

"The  law  in  effect  declares  that  the  railroad  companies  as  common  carriers 
shall  exercise  their  franchises  subject  to  a  duty,  to  wit,  the  repurchase  of  uiuised 
tickets,  but  for  reasons  of  public  ])olicy  no  unautliorized  agent  shall  sell  these 
tickets  to  any  one.  How  does  this  limitation  or  restriction  hinder  transportation 
of  either  men  or  things,  and  '  transportation  (as  has  been  said)  is  essential  to 
commerce,  or  rather  it  is  commerce  itself.'     See  H.  R.  Co.  i\  Husen,  siipi^a. 

"  The  law  does  not  prohibit  the  sale  of  tickets  at  all,  but  only  limits  the  right 
to  authorized  agents  of  the  company,  and  compels  the  common  carrier,  that  is, 
the  company,  to  repurchase.  To  prove  that  the  power  exercised  in  this  instance 
by  the  legislature  of  Pennsylvania,  is  in  no  just  and  legal  sense  such  a  regulation 
of  '  commerce  between  the  states'  as  to  impinge  upon  any  provisions  in  the  con- 
stitution of  the  United  States,  is  not  only  to  answer  the  last  objection  made  to 
this  act,  but  to  develop  the  principle  which  sustains  this  and  kindred  laws. 

"  We  have  already  adverted  to  the  fact,  that  there  resides  in  every  common- 
wealth u  fundamental  right  to  protect  her  citizens. 

"  In  II.  R.  Co.  V.  Husen,  supra,  it  was  said,  '  We  admit  that  the  deposit  in  con- 
gress of  the  power  to  regulate  Ibreign  commerce,  and  commerce  among  the  states, 
was  not  a  surrender  of  that  which  may  properly  be  denominated  police  power.' 
The  principle  thus  admitted  is  founded,  under  the  constitution  of  the  United 
States,  in  the  rights  reserved  to  the  states  and  the  people  thereof,  and  it  has  not 
only  received  the  sanction  of  the  highest  court  under  the  government  of  the 
United  States,  but  that  sanction  has  been  emphasized  in  the  Slaughtt^r  House 
Cases,  16  AVal.  83,  where  the  majority  of  the  court  firmly  maintained  the  right 
of  the  state  under  the  constitution.  The  power  to  create  a  police  regulation  then 
resides  in  the  state,  and  in  the  state  alone.  Has  the  legislature  of  Pennsjlva- 
nia  exercised  her  right  to  declare  what  shall  become  a  constitutional  police  regu- 
lation with  reference  to  the  sale  of  unused  railroad  tickets,  as  a  business,  to  be 
transacted  by  brokers  througliout  the  commonwealth,  or  has  a  law  been  enacted 
which  establishes  a  monopoly  ?  It  would  be  useless  to  refer  to  a  multitude  of  acts, 
already  upon  the  statute  book,  in  which  this  power  has  been  used.  The  learned 
assistant  district  attorney,  Mr.  Ker,  referred  in  detail  to  at  least  fifteen  or 
twenty  laws,  all  of  them  analogous  in  principle  to  the  law  now  under  considera- 
tion. It  would  also  be  a  mere  affectation  of  learning  to  cite  from  the  reported 
decisions  of  the  United  States  Supreme  Court,  case  after  case,  in  which  the  right 
of  a  state  to  enact  laws,  in  principle  identical  witli  the  law  now  before  the  court, 
has  been  affirmed.  Already  we  have  in  this  opinion  referred  to  opinions  which, 
in  our  judgment,  rule  this  cause.  It  is  enough  now  to  say,  that  in  the  case  re- 
ported as  the  Slaughter  House  Case,  and  cited  supj-a,  the  doctrines  pronounced 
by  the  supreme  court  of  the  United  States,  not  only  embrace  a  cause  like  the 
one  now  before  this  court,  but  go  much  beyond  it.  That  great  cause  did  not  de- 
cide that  a  monopoly  might  be  created,  but  that  a  commonwealth  miglit  do  that 
which  was  demanded  for  the  public  welfare.  Even  Mr.  Justice  Field,  one  of 
the  dissenting  judges,  declared  that  this  '  power  extends  to  all  regulations  affect- 
ing the  health,  good  order,  morals,  peace,  and  safety  of  society,  and  is  exercised 
in  a  great  variety  of  subjects,  and  in  numberless  ways.'  In  the  argument  of  this 
cause  it  was  publiclj'  stated,  by  the  learned  gentleman,  Mr.  MacVeagh,  who 
assisted  the  district  attorney,  that  large  numbers  of  tickets  liad  been  stolen  from 
emigrants  going  west,  before  the  trains  had  passed  Harrisburg ;  otlier  tickets, 
which  had  expired  by  limitation  of  time,  had  been  sold  to  ignorant  and  unsuspect- 
ing victims,  while  the  conductors  upon  the  road  were  daily  im])ortuned  by  the 
agents  of  brokers  to  sell  to  tliem  uimsed  tickets,  thus  ])resenting  a  temptation 
to  otherwise  honest  men  to  become  plunderers  of  the  stockholders  of  this  road. 
I  do  not  take  for  granted  these  facts,  and  express  no  judgment  upon  them,  but  I 
have  a  right  to  assume  that  reasons  based  upon  such  facts  were  i)resi'nt(Ml  to  the 
legislature,  and  that,  influenced  by  these  reasons  thus  presente(l,  the  legislature 
intended  to  d(!Stroy  a  business  detrimental  to  good  morals,  and  as  bad  in  its  effects 
as  gambling  itself.  Viewed  in  this  ligiit,  the  preamble  to  this  act  of  assembly 
has  an  incisive  force.     That  preamble  reads  thus: — 

443 


(4690 


OFFENCES  AGAINST  PROPERTY. 


"'Whereas,  numerous  frauds  have  been  practised  upon  unsuspecting  travel- 
lers by  means  of  tlie  sale  by  unauthorized  persons  of  railway  and  other  tickets, 
and  also  upon  railroads  and  other  corporations,  by  the  fraudulent  use  of  tickets, 
in  violation  of  the  contract  of  their  purchase,'  etc.  etc.  Upon  the  trial  of  this 
very  cause  it  appeared  in  evidence  that,  in  addition  to  the  ticket  purchased  fi-om 
Altoona  west,  this  defendant  sold  a  pass,  which  had  been  given  to  an  employe 
of  the  road  to  enable  him  to  travel  from  Altoona  to  Philadelphia  and  return. 
This  employe,  finding  his  services  wanted  iiere,  sold  the  return  pass  to  this  defend- 
ant, who  in  tui-n  sold  it  to  the  purchaser  who  testified  in  the  cause. 

"A  double  fraud  was  thus  perpetrated — one  by  this  defendant,  who  knew 
exactly  wiiat  he  bought  and  afterwards  sold,  and  the  other  by  the  employe,  who 
might  have  been  saved  from  this  perpetration  of  a  fraud  upon  the  stockholders  of 
this  compan}-,  but  for  the  temptation  held  out  to  him  by  this  defendant.  We 
have  nothing  to  do  with  the  wisdom  of  this  act  of  assembly.  With  the  facts, 
however,  before  me,  it  is  not  difficult  to  understand  why  the  legislative  depart- 
ment of  the  government  determined  that  the  time  had  arrived  when  a  business 
which  produced  results  such  as  has  been  specified,  should  be  utterly  destroyed, 
and,  by  a  police  regulation,  it  has  been  declared  to  be  a  criminal  act  to  establish 
a  brokerage  business  in  the  sale  of  '  the  whole  or  any  part  of  any  ticket  or  tickets, 
passes,  or  other  evidence  of  the  holder's  title  to  travel  on  any  railroad,  steamboat, 
or  otiier  public  conveyance.  This  act  of  assembly  is,  under  the  evidence  in 
this  cause,  constitutional,  and  judgment  will  be  entered,  upon  the  demurrer  to 
the  evidence,  for  the  commonwealth." 

444 


MALICIOUS   MISCHIEF. 


CHAPTER  VIII. 

MALICIOUS  MISCHIEF.{a) 

(470)  Maliciously  wounding  a  cow. 

(471)  Giving  cantliarides  to  prosecutors. 

(472)  Tearing  up  a  promissory  note. 

(473)  Cutting  down  trees  the  property  of  another,  not  being  fruit,  or  culti- 

vated, or  ornamental  trees,  under  Ohio  statute. 

(474)  Destroying  vegetables,  under  Ohio  statute. 
(474a)  Malicious  mischief  to  cow,  under  Alabama  statute. 

(475)  Killing  a  heifer,  under  Ohio  statute. 

(476)  Cutting  down  trees,  etc. 

(476ff)  Cutting  trees,  under  English  statute. 

(477)  Killing  a  steer,  at  common  law. 

(478)  Altering  the  mark  of  a  sheep,  under  the  North  Carolina  statute. 

(479)  Second  count.     Defacing  mark. 

(480)  Entering  the  premises  of  another,  and  pulling  down  a  fence. 

(481)  Destroying  two  lobster  cars,  under  the  Massachusetts  statute. 

(482)  Removing  a  landmark,  under  the  Pennsylvania  statute. 

(483)  Felling  timber  in  the  channel  of  a  particular  creek,  in  a  particular 

county,  under  the  North  Carolina  statute. 

(484)  Throwing  down  fence,  under  Ohio  statute. 

(485)  Breaking  into  house,  and  frightening  a  pregnant  woman. 

(486)  Cutting  ropes  across  the  ferry. 

(487)  Breaking  glass  in  a  building.     Mass.  Rev.  Sts.  ch.  126,  §  42. 

(488)  Burning  a  record. 

(488a)  Blowing  up  dwelling-house,  under  English  statute. 
(488^*)  Throwing  gunpowder  in  house,  under  English  statute. 
(488c)   Setting  spring  guns,  under  English  statute. 
(488f/)  Injury  to  goods  in  the  loom,  under  English  statute. 
(488e)  Destroying  machine,  under  English  statute. 
(488/)  Injury  to  railway  train,  under  English  statute. 
(488^)  Injury  to  crops,  under  English  statute. 
(488/i)  Damaging  chattels,  under  English  statute. 

[^For  several  forms  of  indictments  which  may  he  ckxssed  under 
this  head,  see  ^'■Breaches  of  the  Peace,^^  ^^ Assaults,"  etc.,  as  noticed  in 
index.} 

(a)  For  the  offence  generally,  see  "Wh.  Cr.  L.  8th  ed.  §  1065  et  seq. 

445 


(471)  OFFENCES   AGAINST   PROPERTY. 

(470)  31aUeiously  wounding  a  eow.(b) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  one  cow,(c)  of  the  price  of 
seven  pounds,  of  the  goods  and  chattels  of  C.  T).^{d)  then  and 
there  being,  thereby  maliciously  intending  to  injure  the  same 
C.  D.,(t')  unlawfully,  wilfully,  and  maliciously  did  wound,  to  the 
great  damage  of  the  said  C.  D.,  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(471)  Giving  cantharides  to  prosecutors.{f) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  unlawfully  did  assault  M. 
A.  W.  and  M.  C,  and  then  and  there  unlawfully,  knowingly, 
w^ickedly,  and  maliciously  did  administer  to,  and  cause  to  be 
administered  to  and  taken,  by  the  said  M.  A.  W.  and  M.  C.  a 
large  quantity,  that  is  to  say,  two  scruples,  of  cantharides,  the 
same  then  and  there  being  a  deleterious  and  destructive  drug, 
with  intent  thereby  to  injure  the  health  of  the  said  M.  A.  VV. 
and  M.  C,  and  the  said  M.  A.  W.  and  M.  C.  thereby  then  and 
there  became  sick,  sore,  diseased,  and  disordered  in  their  bodies, 
insomuch  that  their  lives  were  despaired  of,  to  the  great  dam- 
age, etc. 

(h)  Stark.  C.  P.  463.  As  to  the  validity  of  this  indictment  at  common  kw, 
see  State  v.  Wheeler,  3  Vt.  344  ;  Com.  v.  Leach,  1  Mass.  59  ;  People  v.  Smith, 
5  Cow.  258  ;  Loomis  r.  Edgerton,  19  Wend.  419;  Res.  v.  Teischer,  1  Dall. 
335;   State  y.  Council,  1  Overt.  (Tenn.)  305. 

(c)  This  is  a  suthcient  description.  State  v.  Pearce,  Peck,  66.  The  same 
precision  should  be  used  as  in  larceny.  Sup7\i,  notes  to  form  415,  pp.  381  et  seq.  ; 
Wh.  Cr.  L.  Sth  ed.  §  1078.  Value  need  not  ordinarily  be  averred  unless  required 
by  statute.     Wh.  Cr.  L.  Sth  ed.  §  1078. 

(f/)  This  is  essential.  Wh.  Cr.  L.  Sth  ed.  §  1078.  Any  mistake  in  the  name 
of  the  owner  will  be  fatal.  Haworth  v.  State,  Peck,  89.  Observe  the  same 
particularity  as  in  larceny.      See  supra,  notes  to  form  415,  pp.  381  et  seq. 

(e)  It  has  been  held  not  necessary  at  common  law,  sejjarately  to  charge  malice 
against  the  owner.  State  v.  Scott,  2  Dev.  &  Bat.  35.  But  the  more  prudent 
course  is  to  make  such  averment.  State*'.  Jackson,  12  Ired.  329;  Hobson  y. 
State,  44  Ala.  380. 

if)  See  R.  V.  Button,  8  C.  P.  6G0,  where  this  indictment  was  sustained.  But 
in  England,  it  now  seems,  the  offence  here  stated  is  no  longer  considered  a  mis- 
demeanor at  common  law.  R.  v.  Dilworth,  2  Moo.  &  Rob.  531;  R.  v.  Hanson, 
2  C.  &  K.  912. 

This  count,  which  in  this  country  would  be  classed  under  the  head  of  malicious 
mischief,  appears  to  have  been  treated  as  an  indictment  for  an  assault  at  common 
law,  and  to  have  been  sustained  as  such.  Whatever  may  be  its  nature,  it  is  im- 
portant as  a  precedent. 

446 


MALICIOUS   MISCHIEF.  (474) 

(472)  Tearing  up  a  prvmissorp  note. 

That,  etc.,  on,  etc.,  at,  etc.,  a  certain  promissory  note  for  the 
payment  of  money,  commonly  called  a  due-bill,  made  and  drawn 
by  the  said  W.,  in  favor  of  one  A.  R.  C,  and  dated  for 

the  sum  and  of  the  value  of  five  dollars,  of  the  property  of  the 
said  A.,  the  said  note  and  due-bill  being  then  and  there  due  and 
unpaid  by  him  the  said  W.,  did  wilfully,  maliciously,  and 
fraudulently  tear  and  destroy,  with  the  intent  then  and  there 
and  thereby  to  cheat  and  defraud  the  said  A.,  to  the  great 
damage  of  the  said  A.,  to  the  evil  example  of  all  others  in  like 
case  offending,  and  against,  etc.    {Conclude  as  in  book  1,  cJuqoter  3.) 

(473)   Cutting  dovm  trees  the  property  of  another^  not  being  fruit,  or 
cultivated^  or  ornamental  trees^  under  Ohio  statute. 

That  A.  B.,  C.  D.,  and  E.  F.,  on  the  tenth  day  of  November, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
six,  at  the  township  of  Independence,  in  the  county  of  Cuya- 
hoga aforesaid,  thirty  living  trees,  standing  on  land  then  and 
there  owned  by  M.  IST.  and  0.  P.,  did  maliciously,  wrongfully, 
and  without  any  lawful  authority,  cut  down  and  destroy  ;  the 
said  trees  not  being  then  and  there  fruit  or  ornamental  trees, 
and  not  trees  standing  or  growing  in  any  nursery,  garden, 
orchard,  or  yard.(5/) 

(474)  Destroying  vegetables^  under  Ohio  statute. 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  at  Wayne  township,  in 

the  county  of  Muskingum  aforesaid,  wilfully,  maliciously,  and 
without  lawful  authority,  did  cut  down,  sever,  and  injure  two 
thousand  stalks  of  a  certain  cultivated  root  and  plant  called 
Indian  corn,  of  the  value  of  fifty  dollars,  said  plants,  stalks,  and 
corn  then  and  there  standing  and  growing  on  the  lands  of 
another,  to  wit,  the  lands  of  one  M.  IST.,  there  situate. (A) 

(r/)   See  Warren's  C.  L.  156. 
(/t)  Warren's  C.  L.  156. 

447 


(476)  OFFENCES   AGAINST    PROPERTY. 

(474a)  3Ialicious  ivjury  to  a  cow.     Alabaynaform. 

State  of  Alabama,  )  ^.j^^^j^  ^  g     •       rj.  ^g^^^ 

Cotiee  County,     j  i    i       o  •> 

The  grand  jury  of,  etc.,  charge,  that  C.  C,  before  the  finding 
of  this  indictment,  unhxwfully  and  maliciously  disabled  or  in- 
jured a  cow,  the  property  of  J.  H.,  against  the  peace,  etc.(?) 
{Conclude  as  in  booh  1,  chajyter  3.) 

(475)  Killing  a  heifer,  under  Ohio  statute.{j) 

That  A.  B,  and  C.  D.,  on  the  eighteenth  day  of  October,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty -two, 
in  the  county  of  Cuyahoga  aforesaid,  wilfully,  maliciously,  and 
purposely  did  kill  and  destroy  a  certain  heifer,  then  and  there 
being  found,  and  the  property  of  M.  N.,  of  the  value  of  twelve 
dollars,  by  then  and  there  {here  set  out  the  manner  of  killing), 
which  said  heifer  was  not  then  and  there  trespassing  in  any 
inclosure  of  the  said  A.  B.(^) 

(476)  Cutting  down  trees,  etc.{l) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  wilfully  and  maliciously  did 
cut  down  and  destroy  ten  ash-trees,  planted  in  a  certain  avenue 
to  the  dwelling-house  of  one  M.  N.,  and  then  growing  for  orna- 
ment there  (he  the  said  M.  N.  then  and  there  being  then  owner 
of  the  said  trees,  which  the  said  A.  B.,  etc.,  then  and  there  well 

(/)  This  was  held  good  in  Cakhvell  v.  State,  49  Ala.  34. 

(_/)  It  should  be  observed  that  in  Ohio  tlie  statute  should  be  followed  closely, 
as  the  oilence  does  not  exist  at  common  law. 

(k)  AVarren's  C.  L.  147. 

(Z)  See  Stai'k.  C.  P.  463.  This  form  may  be  good  at  common  law.  Com.  v. 
Eckert,  2  Browne,  251  ;  Loomis  t'.  Edgarton,  19  AVend.  420;  though  see  Brown's 
case,  3  Greenl.  177.     See  AVh.  Cr.  L.  8th  ed.  §  1067. 

In  an  indictment  for  cutting  timber  under  the  Pennsylvania  statute,  it  was  held 
sufficient  to  aver  that  the  defendants,  the  tree  in  question  (describing  it)  "  did 
cut  down  and  fell,  they,  the  said,  etc.,  well  knowing  the  said  tree  to  be  growing 
on  the  land  of  the  said  J.  H.,  etc.,  and  that  the  land  on  which  the  said  tree  was 
growing  did  not  belong  to  them  the  said  defendants,  or  either  of  them,  or  to 
any  person  by  whom  they  or  either  of  them  was  authorized,"  etc.  Moyer  v. 
Com.,  7  Barr,  439.  See  the  remarks  of  a  learned  correspondent  of  the  Am.  L. 
J.,  on  this  point,  4  Am.  L.  J.  130.  The  Ibrm  in  AVh.  Prec.  1st  ed.  223,  is  cer- 
tainly insufficient,  and  I  am  hapjiy  to  take  this  opportunity  not  only  of  correcting 
it,  but  of  returning  my  acknowledgments  to  the  gentleman  by  whom  the  error 
was  pointed  out.     (See,  also,  Com.  v.  Betchel,  1  Am.  L.  J.  414,  and  remarks.) 

448 


MALICIOUS   MISCHIEF.  (477) 

knew),  to  the  great  damage  of  the  said  M.  N.,  against,  etc. 
{Conclude  as  in  hook  1,  chapter  3.) 

(476(i)  Cutting  trees^  under  English  statute. 

That  J.  S.,  etc.,  on,  etc.,  at,  etc.,  two  elm  trees,  the  property  of 
J.  ]Sr.,  then  growing  in  a  certain  park  of  the  said  J.  IST.,  situate, 
etc.,  feloniously,  unlawful]}^  and  maliciously  did  cut  and  dam- 
age, thereby,  then  and  there  doing  injury  to  the  said  J.  N".  to  an 
amount  exceeding  one  pound,  to  wit,  to  the  amount  of  ten 
pounds,  against,  etc.(w)     {Conclude  as  in  hook  1,  chajjter  3.) 

(477)  Killing  a  steer^  at  common  law.{n) 

That  D.  S.,  etc.,  on,  etc.,  at,  etc.,  one  steer,  of  the  value  of  five 
dollars,  of  the  goods  and  chattels  of  one  L.  M'C,  then  and  there 

(???)  Arch.  C.  P.  19th  ed.  p.  599. 

(n)  State  v.  Scott,  2  Dev.  &  Bat.  35. 

Daniel,  J.,  after  stating  the  substance  of  the  case  in  detail,  proceeded  :  "  We 
see  no  ground  for  a  new  trial  in  tliis  case.  The  evidence  objected  to  was  ad- 
mitted— and,  as  we  think,  correctly — to  repel  an  allegation  made  by  the  de- 
fendant, of  an  alibi.  And  after  tlie  evidence  was  admitted  by  the  court,  the 
weight  and  effect  of  it  was  matter  for  the  jury  only;  and  it  seems  to  us,  tluit 
there  was  nothing  left  for  the  court  to  remark  upon,  especially,  as  no  particular 
charge  concerning  this  evidence  was  prayed  by  the  defendant.  We  have  ex- 
amined the  reasons  in  arrest,  and  concur  in  opinion  with  the  judge  who  pro- 
nounced the  judgment.  1st.  The  two  detached  pieces  of  paper  writing  purport- 
ing to  be  a  transcript  of  the  I'ecord,  contained  everything  necessary  to  give  Bun- 
combe superior  court  jurisdiction ;  it  contained  the  indictment,  plea,  and  order 
of  removal.  In  that  shape  it  was  entered  on  the  state  docket,  and  the  defendant 
went  to  trial.  From  great  caution,  the  judge  suspended  judgment  at  the  trial 
term,  and  sent  a  certiorari  for  such  a  record  as  could  not  be  cavilled  about. 
At  the  term  judgment  was  rendered,  the  record  was  unexceptionable,  and 
showed  that  the  two  pieces  of  paper  which  had  been  received  as  the  record 
of  the  case,  and  on  which  the  defendant  had  been  tried,  contained  a  true  and 
complete  transcript  of  the  I'ccord  when  it  was  removed  from  Rutherford.  So, 
when  judgment  was  pronounced,  the  record  showed  that  the  case  had  been  prop- 
erly removed,  and  that  Buncombe  superior  court  had  jurisdiction  of  the  case 
at  the  term  the  trial  took  place.  The  record  being  unexceptionable  when 
judgment  was  prayed,  there  was  nothing  to  restrain  tlie  judge  from  pronounc- 
ing it. 

"2d.  This  court  decided,  in  the  case  of  the  State  v.  Simpson,  2  Hawks,  4G0, 
that  an  indictment  for  malicious  mischief,  which  concluded  at  common  law,  was 
good. 

"That  decision  was  made  in  the  year  1823,  and  since  that  many  convictions 
on  indictments  for  malicious  mischief  at  common  law,  have  taken  place  in  the 
circuits  of  this  state.  In  tlie  year  182G,  the  legislature  indirectly  approved  of  the 
decision ;  for  in  the  act  limiting  the  time  that  indictments  for  misdemeanors 
should  be  brought,  it  is  declared,  that  in  all  trespasses  and  other  misdemeanors 
except  the  offences  of  perjury,  forgery,  malicious  mischief,  and  deceit,  tlie  prose- 
cution shall  commence  within  three  years  after  the  commission  of  the  offence. 

VOL.  I.— 29  449 


(478)  OFFENCES   AGAINST    PROPERTY. 

being,  then  and  there  unlawfully,  ■wantonly,  maliciously,  and 
mischievously  did  kill,  to  the  great  damage  of  the  said  L.  M'C, 
and  against,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

(478)  Altering  the  mark  of  a  sheep,  under  the  North  Cai^oUna 

statute.{o) 

That  J.  D.,  etc.,  on,  etc.,  at,  etc.,  feloniously  and  knowingly 
did  alter  the  mark  of  one  sheep,  the  property  of  W.  M'C,  know- 
After  what  lias  taken  place,  we  think  the  period  too  late  for  us  now  to  examine 

i'urthor  into  the  question. 

"  3(1.  The  objection  is,  that  the  indictment  does  not  charge  malice  against  the 
owner  of  the  property.  We  have  looked  into  the  books  of  forms  and  precedents, 
and  find  that  the  form  of  this  indictment  corresponds  with  the  forms  prescribed 
in  the  books.  What  evidence  the  state  must  produce  to  support  such  an  indict- 
ment as  this,  Ave  are  not  called  on  to  decide.  We  think  there  is  no  ground  for  a 
new  trial  or  arrest  of  judgment,  and  this  opinion  will  be  certified  to  the  superior 
court  of  law  for  the  county  of  Buncombe,  that  it  may  proceed  to  final  judgment 
in  the  case." 

(n)  State  V.  Davis,  2  Iredell,  153. 

Gaston,  J.  :  "  We  are  of  opinion  that  the  appellant  has  not  shown  any  error  in 
the  instructions  to  the  jury,  nor  suflicient  reasons  to  arrest  the  judgment. 

"  The  indictment  is  founded  on  the  act  of  1822,  c.  1155,  re-enacted  in  the 
revised  sts.  ch.  34,  §  55,  whereby  it  is  declared,  '  that  if  any  person  shall  know- 
ingly alter  or  deface  the  mark  or  brand  of  any  person's  neat  cattle,  sheep,  or  hog, 
shall  knowingly  mismark  or  brand  any  unbranded  or  unmai-ked  neat  cattle, 
sheep,  or  hog,  not  properly  his  own,  with  intent  to  defraud  any  other  person,  he 
shall,  on  conviction  in  a  court  of  record,  be  liable  to  corporal  punishment  in  the 
same  manner  as  on  a  conviction  of  petit  larceny.'  The  manifest  purpose  of  the 
legislature  is  to  punish  the  act  of  changing  or  defiicing  these  marks  or  brands, 
which  are  the  ordinary  indications  of  ownership  in  property  of  this  description, 
and  also  the  act  of  putting  false  marks  or  brands  thereon,  with  intent  to  injure 
the  owner  by  either  depriving  him  of  the  property  or  rendering  his  title  thereto 
more  diificult  of  proof.  Now,  when  the  act  of  wilfully  changing  or  defacing  the 
mark  is  fixed  upon  the  person  accused,  and  no  explanation  is  given  of  the  act  to 
render  it  consistent  with  an  honest  purpose,  the  conclusion  follows  irresistibly 
that  it  was  done  with  intent  to  eii'ect  the  injury  which  is  the  ordinary  and  neces- 
sary consequence  of  the  act.  Such  intention  is  directed  against  the  owner,  who- 
ever he  may  be,  and  the  charge  that  the  act  was  done  with  intent  to  injure  any 
individual  named,  is  made  out,  when  it  is  shown  that  he  was  the  owner  at  the 
time  when  the  act  was  committed. 

"  It  has  been  contended  by  the  counsel  for  the  appellant,  that  the  offence  cre- 
ated by  the  statute  and  charged  in  the  indictment  could  not  have  been  com- 
mitted, because  at  the  time  wlien  the  act  was  done,  the  animal  had  strayed  from 
the  possession  of  the  owner,  and  the  statute,  by  declaring  that  the  offender  shall 
be  liable  to  corporal  punishment  in  the  same  manner  as  on  a  conviction  of  petit 
larceny,  must  be  understood  as  applying  to  those  cases  only  wherein  the  offender, 
by  a  felonious  appropriation  of  the  animal,  would  have  committed  the  crime  of 
petit  larceny.  He  further  urges  that  this  construction  of  the  statute  is  strength- 
ened by  the  circumstance,  that  a  special  provision  is  made  by  the  statute  for 
improper  interference  with  strays,  in  ch.  112,  §  8.  We  do  not  concur  in  this  con- 
struction of  the  statute.  In  the  description  of  the  offence  thereby  created,  no 
referenco  is  made  to  the  crime  of  larceny.     The  offence  consists  in  knowingly 

450 


MALICIOUS    MISCHIEF.  (480) 

ingly,  with  intent  to  defraud  the  said  W.  M'C,  contrary,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(479)  Second  count.     Defacing  mark. 

That  J.  D.,  etc,  on,  etc.,  at,  etc.,  knowincrly  did  deface  the 
mark  of  a  sheep,  the  property  of  one  W".  M'C,  then  and  there, 
with  an  intent  to  defraud  the  said  W.  M'C,  contrary,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(480)  Entering  the  premises  of  another  and  jndling  down  afence.{p) 

That  T.  C,  etc.,  on,  etc.,  at,  etc.,  into  a  certain  close  of  a  cer- 
tain A.  M.,  situate  in  the  township  and  county  aforesaid,  in  and 
upon  the  possession  thereof  of  the  said  A.,  into  which  the  said 
T.  had  not  legal  right  of  entry,  did  enter,  and  ten  panels  of  fence 
of  the  said  A.,  then  and  there  standing  and  being,  then  and 
tliere  did  pull  down,  take,  and  carry  away,  to  the  great  damage 
of  the  said  A.,  and  against,  etc.    {Conclude  as  in  book  1,  chapter  3.) 

altering  and  defacing  the  mark  of,  or  in  knowingly  mismarking  an  animal,  the 
property  of  another,  with  intent  to  defraud.  Tlie  mere  straying  of  the  animal 
from  the  owner's  premises  makes  no  change  of  property.  The  animal  still  re- 
mains his,  and  the  wrongful  act  is  not  less  calculated,  but  in  fact  more  likely  to 
do  him  an  injury,  than  it  would  be  if  done  to  an  animal  in  his  immediate  pos- 
session. The  reference  in  the  statute  to  the  punishment  in  cases  of  petit  larceny 
docs  not  affect  the  description  of  the  offence,  more  tlian  it  would  have  afiected 
that  description,  if  the  reference  had  been  to  tlie  punishment  in  cases  of  perjurv 
or  forgery,  or  of  any  other  crime.  It  only  denounces  against  tlie  offence  j)revi"- 
ously  described,  the  same  penalty  by  wliich  the  existing  law  is  inflicted  upon  a 
conviction  of  petit  larceny.  The  construction  contended  for  is  not  unwarranted 
by  the  language  of  the  statute,  but  would  render  tlie  statute  itself  inoperative  in 
the  case,  Avhich  mainly  rendered  it  necessary.  Nor  does  the  section  referred  to 
in  ch.  112  provide  for  an  offence  of  this  description  in  cases  of  strays.  The  object 
of  the  legislature  in  that  chapter  is  to  point  out  a  mode  of  proceeding  in  those 
cases,  whereby  the  owner  maybe  enabled  to  regain  the  possession  of  liis  propertv 
or  to  get  the  value  thereof,  and  a  proper  compensation  may  be  made  to  those 
who  shall  render  him  the  assistance  for  this  purpose ;  and,  in  furtherance  of  this 
object,  the  eighth  section  imposes  a  pecuniary  midct  on  those  wlio  may  take  up 
or  use  the  stray  otherwise  than  in  the  mode  therein  directed. 

"  The  motion  in  arrest  of  judgment  rests  on  two  grounds.  The  first  is,  for  that 
the  offence  is  not  described  in  the  language  of  the  statute.  Tiiis  objection  applies 
only  to  the  first  count  of  the  indictment,  and  as  to  that  is  well  taken.  The  first 
count  charges  that  the  accused  did  alter  the  iimke  of  the  sheep.  No  doubt  the 
word  'make'  was  intended  to  be  written  'mark,'  but  it  is  a  different  wonl,  hav- 
ing a  different  signification,  and  cannot  be  brought  within  the  exception  of  idem 
sonans.  But  this  mistake  is  not  in  the  second  count,  which  charges  that  he  de- 
faced the  mark  of  the  sheep;  and  a  general  verdict  of  guilty  having  been  ren- 
dered, judgment  will  not  be  arrested,  if  cither  count  be  sufficient  to  warrant  it." 

(p)  This  indictment  was  drawn  in  1779,  by  Mr.  J.  1).  Sergeant,  then  attorney- 
general  of  Pennsylvania.     See  "Forcible  Entry  and  Detainer,"  post,  48i),  etc. 

451 


(484)  OFFENCES  AGAINST  PROPERTY. 

(481)  Destroying  two  lobster  cars^  under  the  Massachusetts  statute.{q) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  did  wilfully,  maliciously,  and 
secretly,  in  the  night-time,  destroy  and  injure  two  lobster  cars, 
two  brass  locks  attached  to  said  cars,  and  two  cables,  by  which 
said  cars  Avere  moored  and  fastened,  and  three  hundred  lobsters 
contained  in  the  cars  aforesaid,  all  being  the  property  of  one  F. 
W.,  etc. 

(482)  Removing  a  landmark^  under  the  Pennsylvania  statute.{r) 

That  L.  S.,  etc.,  on,  elc,  at,  etc.,  one  bounded  growing  oak- 
tree,  being  one  of  the  landtnards  of  a  tract  of  plantable  land, 
whereof  J.  B,  was  then  and  there  seized  in  his  demesne  as  of 
fee,  at  township  aforesaid,  and  within,  etc.,  secretly,  unjustly, 
and  without  the  consent  or  knowledge  of  the  said  J.  B.,  did  cut 
down  and  remove,  contrary,  etc.,  and  against,  etc.  [Conclude  as 
171  book  1,  chapter  3.) 

(483)  Felling   timber  in  the  channel  of  a  particular  creek,  in  a 
particular  county,  under  North  Carolina  statute.{s) 

That  H.  C,  etc.,  on,  etc.,  at,  etc.,  unlawfully  and  maliciously 
did  fell  timber  in  the  channel  of  Hogan's  creek,  in  the  county 
of  Caswell  aforesaid,  and  did  then  and  there,  by  such  felling  of 
timber  aforesaid,  on  the  twentieth  day  of  February  aforesaid, 
obstruct  the  channel  of  the  creek  aforesaid,  in  the  county  of 
Caswell  aforesaid,  to  the  great  damage  of  the  owners  of  the  land 
on  the  said  creek,  contrary,  etc.,  and  against,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 

{For  cutting  and  stealing  trees,  see  supra,  445c?.) 

(484)   Throwing  down  fence  under  Ohio  statute. 

That  A.  B.,  on  the  day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  in  the  county  of  Mus- 

[q)  On  this  count,  framed  upon  the  Rev.  Sts.  ch.  126,  §  39,  alleging  that  the 
defendant  wilfully  destroyed  and  injured  a  cable  by  which  a  fish  car  was  moored 
and  fastened,  proof  that  he  wilfully,  etc.,  cut  ofl"such  a  cable  a  few  feet  from  one 
end  thereof,  was  held  sullicient  to  warrant  his  conviction.  Com.  v.  Soule,  2 
Met.  21. 

(r)  This  indictment  is  taken  from  Reed's  Digest,  and  is  drawn  on  the  provin- 
cial act  of  1700  ;   1  Smith's  Laws,  4. 

(s)  State  V.  Cobb,  1  Dev.  &  Bat.  115. 

452 


MALICIOUS    MISCHIEF.  (^8^) 

kinguni  aforesaid,  did  wantonly  and  maliciously  throw,  put,  and 
lay  down  and  prostrate  twenty  panels  of  a  certain  fence  there 
situate,  said  fence  then  and  there  inclosing  a  certain  field  there 
situate,  in  which  said  field  a  certain  grain,  called  wheat,  was 
then  and  there  cultivated,  said  fence,  field,  and  grain  being  then 
and  there  the  property  of  another  person  than  the  said  A.  B.,  to 
wit,  the  property  of  one  M.  N".,  and  being  then  and  there  lawfully 
occupied  by  the  said  M.  IST.,  and  he  the  said  A.  B.  did  then  and 
there  wantonly  and  maliciously  leave  said  twenty  panels  of  said 
fence  down,  prostrate,  and  open.(^) 

(485)  Breaking  into  house,  and  frightening  a  pregnant  woman.{u) 
That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  about  the  hour  of  ten  of  the 

(0    Warren's  C.  L.  172. 

(t<)  Com.  V.  Taylor,  5  Binn.  277.  "But  supposing,"  said  Tilghman,  C.  J., 
"the  indictment  not  to  be  good  for  a  forcible  entry,  may  it  not  be  supported  on 
other  grounds  ?  In  the  case  of  The  Com.  v.  Teischer,  1  Dall.  31^5,  judgment 
was  given  against  the  defendant  for  ^  vialiciinisly,  icilfully,  and  iLnckedlij  killing 
a  horse.'  These  are  the  words  of  the  indictment,  and  it  seems  to  have  been  con- 
ceded by  Mr.  Sergeant,  the  counsel  for  the  defendant,  that  if  it  had  been  laid  to 
be  done  secretly,  the  indictment  would  have  been  good.  Plere  the  entering  of 
the  house  is  laid  to  be  done  ^secretly,  maliciously,  andunth  an  attempt  to  disturb 
the  peace  of  the  commonwealth.'  I  do  not  find  any  precise  line  by  which  indict- 
ments for  malicious  mischief  are  separated  from  actions  of  trespass.  But  whether 
the  malice,  the  mischief,  or  the  evil  example  is  considered,  the  case  before  us 
seems  full  as  strong  as  Teischer' s  case.  There  is  another  principle,  however, 
upon  which  it  appears  to  me  that  the  indictment  maybe  supported.  It  is  not 
necessary  that  there  should  be  actual  force  or  violence  to  constitute  an  indictable 
offence.  Acts  injurious  to  private  persons,  which  tend  to  excite  violent  resent- 
ment, and  thus  produce  figliting  and  disturbance  of  the  peace  of  society,  are  theni- 
selves  indictable.  To  send  a  challenge  to  fight  a  duel  is  indictable,  because  it 
tends  directly  towards  a  breach  of  the  peace.  Libels  fall  within  the  same  reason. 
A  libel  even  of  a  deceased  person  is  an  offence  against  the  public,  because  it  may 
stir  up  the  passions  of  the  living  and  produ(;e  acts  of  revenge.  Now  what  could 
be  more  likely  to  produce  violent  passion  and  a  disturbance  of  the  peace  of 
society,  than  the  conduct  of  the  defendant?  He  enters  secretly  after  niyht  into 
a  private  dwelling-house,  with  an  intent  to  disturb  the  family,  and  after  entering 
makes  such  a  noise  as  to  terrify  the  mistress  of  the  house  to  such  a  degree  as  to 
cause  a  miscarriage.  Was  not  this  enough  to  pro<luce  some  act  of  desperate  vio- 
lence on  the  part  of  the  master  or  servants  of  the  family  ?  It  is  objecteil  that  the 
kind  of  noise  is  not  described  ;  no  matter,  it  is  said  to  have  been  made  vehemently 
and  turhnlently,  and  its  effects  on  the  ])regnant  woman  are  described.  In  the 
case  of  the  King  v.  Hood  (Sayer'sRep.  in  K.  B.  16!),  the  court  refused  to  (juash 
an  indictment  lor  disturbing  a  lamily  by  violently  kicking  at  the  front  door  of  the 
house  for  the  space  of  two  hours.  It  is  impossible  to  find  precedents  for  all 
offences.  The  malicious  ingenuity  of  mankind  is  constantly  ])roducing  new  iuven- 
tions  in  the  art  of  disturbing  their  neighbors.  To  this  invention  must  be  opjjosed 
general  principles,  calculated  to  meet  and  jnuiish  them.  1  am  of  o])inion  that  tlie 
conduct  of  the  defendant  falls  withiu  the  range  of  established  princi[)les,  and  that 
the  judgment  of  the  court  below  should  be  reversed."  See  similar  precedent, 
post,  8G8. 

453 


(487)  OFFENCES  AGAINST  PROPERTY. 

clock  in  the  night  of  the  same  day,  with  force  and  arras,  at  Lur- 
gan  township,  in  the  county  aforesaid,  the  dwellincr-house  of  J. 
S.,  there  situate,  unhiwfully,  maliciously,  and  secretly  did  break 
and  enter,  with  intent  to  disturb  the  peace  of  the  commonwealth; 
and  so  being  in  the  said  dwelling-house,  unlawfully,  vehemently, 
and  turbulently  did  make  a  great  noise,  in  disturbance  of  the 
peace  of  the  commonwealth,  and  greatly  misl)ehave  himself  in 
the  said  dwelling-house,  and  E.  S,,  the  wife  of  the  said  J.,  greatly 
did  frighten  and  alarm,  by  means  of  which  said  fright  and  alarm, 
she  the  said  E.,  being  then  and  there  pregnant,  did  on  the  sev^enth 
day  of  September,  in  the  year  aforesaid,  at  the  county  aforesaid, 
miscarry,  and  other  wrongs  to  the  said  E.  then  and  there  did,  to 
the  evil  example,  etc. 

(486)  Cidtivg  ropes  across  the  ferry. {v) 

That  H.  K.,  etc.,  on,  etc.,  at,  etc.,  did  maliciously  and  wan- 
tonly cut  two  ropes  stretched  across  the  river  Schuylkill  by  C. 
P.  et  al.,  the  occupiers  of  the  ferry  over  Schuylkill,  commonly 
called  the  upper  ferry,  and  that  the  said  ropes  are  used  in  draw- 
ing boats  and  carrying  travellers  over  the  same  river  and  ferry, 
to  the  great  damage  of  the  said  C.  P.,  and  against,  etc.  {Con- 
clude as  in  hook  1,  chapter  3.) 

(487)  Breaking  glass  in  a  building.     Mass.  Rev.  Sts.  eh.  126,  §  42. 

Tbat  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the 
first  day  of  June,  in  the  year  of  our  Lord  with  force  and 

arms  at  B.  aforesaid,  in  the  county  aforesaid,  wilfully,  mali- 
ciously, wantonly,  and  without  cause,  did  break  and  destroy 
the  glass,  to  wit,  ten  panes  of  window  glass,  each  of  the  value 
of  one  dollar,  of  the  property  of  one  A.  B.,  in  a  certain  building 
there  situate,  not  his  the  said  C.  B.'s  own,  but  which  building 
then  and  there  belonged  to  and  was  the  property  of  the  said  A. 
B.,  the  said  glass  then  and  there  being  parcel  of  the  realty,  to 
wit,  of  the  building  aforesaid, (2^'')  against,  etc.,  and  contrary, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

(r)  Drawn  and  prosecuted  in  1773,  by  Mr.  Andrew  Allen,  tlien  attorney-gen- 
eral of  Pennsylvania. 

(w)   See  as  to  necessity  of  this  allegation,  Com.  v.  Bean,  6  Bost.  Law  Rep. 

N.  S.  387. 

454 


MALICIOUS  MISCHIEF.  (4886) 

(488)  Barning  a  record.{x) 

ThatH.  E.,  etc.,  L.  K,etc.,  W.  H.,  etc.,  M.  H.,  etc.,  aiul  G.  S., 
etc.,  on,  etc.,  at,  etc.,  a  certain  paper  writing,  containino;  in  it- 
self a  certificate  of  four  sufficient  housekeepers  of  the  neighbor- 
hood, inhabiting  in  and  near  the  said  township,  and  with  their 
names  subscribed,  and  to  the  justices  of  the  peace  of  the  same 
county  directed,  that  they  the  said  housekeepers  had  laid  out  a 
road  and  highway  in  the  said  township,  according  to  an  order 
of  the  same  justices  in  their  quarter  sessions  made  for  the  lay- 
ing out  the  same,  which  to  the  same  justices  in  their  quarter 
sessions  had  been  legally  made,  certified,  and  returned,  and 
of  record  affiled,  according  to  the  act  of  assembly  in  such  case 
made  and  provided,  to  wit,  at  the  city  of  Philadelphia,  in  the 
said  county,  unjustly  and  unlawfully  did  burn  and  destroy,  to 
the  manifest  contempt  of  the  good  laws  of  this  province,  to  the 
evil  example  of  all  others  in  the  like  case  oti'eading,  against,  etc. 
{Conclude  as  in  book  1,  chafer  3.) 

(488«)  Blowing  up  dwelling-house^  under  English  statute. 

—  feloniously,  unlawfully,  and  maliciously  did,  by  the  explo- 
sion of  a  certain  explosive  substance,  that  is  to  say,  gunpowder, 
destroy  {or  throw  down  or  damage)  the  dwelling-house  of  J.  N., 
situate,  etc.,  whereby  the  life  of  one  A.  i^.  was  endangered, 
against,  etc.(?/)     {Conclude  as  in  book  1,  chapter  3.) 

(4886)  Throwing  gunpowder  in  house  with  intent^  under  English 

statute. 

—  feloniously,  unlawfully,  and  maliciously  did  throw  into  the 
dwelling-house  of  J.  N".,  situate,  etc.,  a  large  quantity,  to  wit, 
two  pounds,  of  a  certain  explosive  substance,  that  is  to  say,  gun- 
powder, with  intent  thereby,  then  to  destroy  the  said  dwelling- 
house,  against,  etc.(2:)     {Conclude  as  in  book  1,  chapter  3.) 

{x)  Drawn  by  Tench  Francis  (attorney-general  of  Pennsylvania),  some  years 
before  the  Revolution,  though  I  have  been  unable  to  fix  the  exact  date.  The 
approval  of  tliis,  and  of  several  kindred  prece(K'nts  under  the  head  of  '•  Malicious 
Mischief,"  "Nuisances,"  etc.,  shows  the  liberality  with  which  the  couuuou  law 
was  applied  under  the  colonial  system. 

(^)  Arch.  C.  P.  19th  ed.  p.  571.  (z)  Ai-ch.  C.  P.  19th  ed.  572. 

455 


(488^)  OFFENCES    AGAINST    PROPERTY. 

(488<?)  Setting  spring-gun^  etc.,  under  English  statute. 

—  unlawfully  did  set  and  place  and  cause  to  be  set  and  placed, 
in  a  certain  garden,  situate,  etc.,  a  certain  spring-gun  {or  man- 
trap, or  engine  calculated  to  destroy  human  life),  which  was 
then  loaded  and  charged  with  gunpowder  and  divers  leaden 
shot,  with  intent  that  the  said  spring-gun,  so  loaded  and 
charged  as  aforesaid,  should  inflict  grievous  bodily  harm  upon 
any  trespasser  {or  person)  who  might  come  in  contact  there- 
with ;  against,  etc.(a)     {Conclude  as  in  book  1,  chapter  3.) 

(4:88(/)  Malicious  injury  to  goods  in  the  loom,  under  English 

statute. 

That  J.  S.,  etc.,  on,  etc.,  at,  etc.,  twenty-five  yards  of  woollea 
cloth,  of  the  goods  and  chattels  of  J.  N.,  in  a  certain  loom  then 
and  there  being,  feloniously,  unlawfully,  and  maliciously  did  cut 
and  destroy,  against,  etc.(6)     {Conclude  as  in  book  1,  chapter  3.) 

(488e)  Destroying  machines,  under  English  statute. 

That  J.  S.,  etc.,  on,  etc.,  at,  etc.,  a  certain  threshing  machine, 
the  property  of  J.  IST.,  feloniously,  unlawfully,  and  maliciously 
did  cut,  break,  and  destroy,  against,  etc.((?)  {Conclude  as  in  book 
1,  chapter  3.) 

(488/)  Injury  to  railway  train,  under  English  statute. 

That  J.  S.,  on,  etc.,  at,  etc.,  feloniously,  unlawfully,  and  ma- 
liciously did  put  and  place  a  piece  of  wood  upon  a  certain  rail- 
way, called  in,  etc.,  wnth  intent  thereby  then  to  obstruct, 
upset,  overthrow,  and  injure  a  certain  engine  and  certain  car- 
riages using  the  said  railway,  against,  etc.((/)  {Conclude  as  in 
book  1,  chapter  S.) 

{4:88g)  Setting  Jire  to  crops  of  corn,  under  English  statute. 

—  feloniously,  unlawfully,  and  maliciously  did  set  fire  to  a  cer- 
tain crop  of  wheat  {or  hay,  or  other  crop  covered  by  statute),  of  the 

(rt)   Arch.  C.  P.  19th  ed.  p.  733.  (l)  Arch.  C.  P.  19th  ed.  p.  576. 

(c)   Arch.  C.  P.  19th  ed.  p.  578. 

(</)  Arch.  C.  P.  19th  ed.  p.  593,  citing  R.  v.  Bradford,  Bell,  268;  K.  v. 
Hadfield,  L.  R.  1  C.  C.  P.  253  ;  P.  v.  Sanderson,  1  F.  &  F.  37. 

456 


MALICIOUS   MISCHIEF.  (488/t) 

goods  and  chattels  of  J.  iST.,  then  standing  and  growing,  against, 
etc.(e)     {Conclude  asiii  book  1,  cJuqjter  3.) 

(488A)  Damaging  chattels,  under  English  statute. 

The  jurors  for,  etc.,  upon  their  oath  present,  that  M.  T.,  on, 
etc.,  in  and  upon  three  frocks,  six  petticoats,  one  flannel  petti- 
coat, one  flannel  vest,  one  pinafore,  one  jacket,  one  pair  of 
knickerbockers,  one  flannel  night-gown,  one  woollen  cape,  one 
sash,  one  table-cloth,  one  sheet,  three  hats,  and  one  brooch 
of  the  value  of  twenty  pounds,  and  of  the  property  of  G.  A., 
unlawfully  and  maliciously  did  commit  certain  damage,  injury, 
and  spoil  to  an  amount  exceeding  five  pounds,  by  unlawfully 
and  maliciously  cutting  and  destroying  the  same,  against,  etc.(/) 
{Conclude  as  in  hook  1,  chapter  3.) 

(e)  Arch.  C.  P.  19th  ed.  569. 

(/)  In  R.  v.  Thoman,  12  Cox  C.  C.  54,  it  was  held  that  in  the  above  in- 
dictment it  was  not  necessary  to  allege  the  value  of  each  article  injured,  but  only 
that  the  amount  of  the  damage  done  to  the  several  articles  exceeded  £5  in  the 
aggregate. 

457 


OFFENCES    AGAINST    PROPERTY. 


CHAPTER  IX. 

FORCIBLE  ENTRY  AND  DETAINER,  (a) 

(489)  General  frame  of  indictment  at  common  law, 

(490)  Another  form  of  same. 

(491)  Against  one,  etc.,  at  common  law,  with  no  averment  of  either  lease- 

hold or  freehold  possession  in  the  prosecutor. 

(o)  Before  considering  the  pleading  in  forcible  entry  and  detainer,  the  general 
character  of  the  offence  will  be  considered. 

(^Forcible  entrji  at  coimnon  law.)  The  assertion  of  right  to  lands  or  houses 
by  force  has  always  been  discouraged  by  courts,  from  a  just  apprehension  of  the 
tumults  to  which  sucli  proceedings  may  lead.  Although,  therefore,  no  indict- 
ment will  lie  for  a  mere  trespass,  accompanied  only  by  constructive  force,  yet  it 
seems  to  be  established  that  an  entry  on  land,  or  into  a  house,  garden,  etc.,  or  a 
church,  though  no  one  be  therein,  with  such  actual  violence  as  amounts  to  an  un- 
lawful act,  or  public  breach  of  the  peace,  expressed  in  law  to  be  "  with  force  and 
arms  and  a  strong  hand,"  e.  (/.,  bringing  unusual  weaj)ons,  threatening  violence, 
breaking  open  a  door,  or  violent  ejection  of  the  possessor  of  a  house,  is  an  otfence 
indictable  at  common  law.  as  a  forcible  entrv  (Langdon  v.  Potter,  3  Jlass.  215; 
Harding's  case,  1  Greenl.  22;  Com.  v.  Taylor,  5  Binn.  27  7;  Newton  v.  Har- 
land,  1  ]\Ian.  &  G.  C44  ;  Cruiser  v.  State,  3  Harrison,  206  ;  State  v.  Mills,  2  Dev. 
420;  State  r.  Spierin,  1  Brevard,  119),  though  the  statute  gives  other  remedies 
to  the  parties  aggrieved,  viz.,  restitution  and  damages  ;  and  that  the  illegal  and 
violent  maintenance  of  possession,  if  the  entry  was  unlawful,  is,  in  like  manner, 
indictable  as  a  forcible  detainer.  R.  v.  Newlands,  4  Jur.  322,  Littledale,  J.  ; 
Le  Blanc,  J.,  R.  v.  Wilson  and  others,  8  T.  R.  3G3  ;  Ld.  Kenyon,  lb.  3r)7  ;  Co. 
Lit.  257  ;  R.  ?'.  John  Wilson,  3  A.  &  E.  817  ;  S.  C,  5  N.  &  M.  1(54  ;  Com.  Dig. 
tit.  Forcible  Entrij  (A.  1,  2,  B.  1).  An  entry,  though  by  one  person  only,  will 
be  forcible,  if  either  by  act  or  threat  at  the  time  of  his  entry  he  gives  the  purtj' 
in  possession  just  cause  to  fear  bodily  hurt  if  he  does  not  give  way  ;  and  the  s;\uie 
circumstances  of  violence  or  terror  which  make  an  entry  forcible,  make  a  detainer 
forcible  also.  A  detainer  may  be  forcible  whether  the  entry  were  so  or  not 
(Hawk.  b.  1,  c.  64;  Com.  Dig.  tit.  Forcible  Entr//),  if  su'di  entrv  was  unlawful. 
_R.  V.  Oakley,  4  B.  &  Ad.  307  ;  1  N.  &  M.  58.  Though  a  breach  of  the  i)cace 
is  necessary  to  constitute  the  offence  (Com.  v.  Dudley,  10  Mass.  403),  it  seems 
that  no  circumstances  of  great  j)ublic  violence  or  terror  are  requisite ;  for  it  is 
laid  down  "  that  an  entry  may  be  said  to  be  forcible,  not  only  in  respect  of  vio- 
lence actually  done  to  the  person  of  a  man,  as,  by  beating  him  if  he  refuse  to 
relinquish  his  possession,  but  also  in  respect  of  any  violence  in  the  manner  of 
entry,  as,  by  breaking  open  the  doors  of  a  house,  whether  any  person  be  in  it  at 
the  same  time  or  not,  especially  if  it  be  a  dwelling-house."  Hawk.  b.  1,  c.  64, 
s.  26  ;  State  v.  Pollock,  4  Iredell,  305;  Bennett  d.  State,  4  Rice,  340.  The 
offence  of  forcible  entry  at  common  law  is  punishable  by  fine  or  imprisonment, 
in  respect  to  the  injury  done  to  the  public  peace. 

(Forcible  entry  witltin  tlie  statutes.)  But  further  to  discourage  the  attempts  of 
parties  to  assert  their  claims  by  violence,  statutes  were  passed  in  England  in  very 

458 


FORCIBLE    ENTRY    AND    DETAINER. 

(492)  Forcible  entry,  etc.,  into  a  freehold,  on  stat.  5  Rich.  II. 

(493)  Forcible  entry,  into  a  leasehold,  on  stat.  21  Jac.  I. 

(494)  Forcible  detainer,  on  stat.  8  Hen.  VIII.  or  21  Jac.  I. 

early  times,  -which  have  been  snbstantlally  re-enacted  in  several  of  the  States,  not 
merely  to  annex  piinislinient  to  the  oifence  of  entering  by  sti'ong  hand  on  a  peace- 
able possession,  but  to  grant  restitution  to  the  party  dispossessed,  on  the  conviction 
of  the  offender.  After,  therefore,  the  statute  5  Richard  II.  had  declared  the  law 
"  that  none  should  make  entry  into  lands  and  tenements,  but  in  cases  Avhere  entry 
is  given  by  tlie  law,  nor,  in  such  eases,  with  strong  hand,  nor  with  multitude  of 
people  (ten  making  a  '  multitude  ;'  Co.  Lit.  257  a  ;  R.  u.  Heine,  cited  Stra.  195  ; 
Ex  jKirte  Davy,  6  Jur.  949,  Wightman,  J.),  but  only  in  a  peaceable  and  easy 
manner,  on  pain  of  imj)risonment  and  ransom,"  the  statute  15  Rich.  II.  c.  2, 
gave  a  remedy  by  summary  commitment  of  the  offender  till  fine  and  ransom;  and 
by  8  Hen.  VIII.  c.  9,  this  provision  was  extended  to  cases  o^  forcible  detainer, 
and  justices  of  the  peace  were  empowered  to  restore  the  premises  to  the  former 
possessor,  where  the  force  had  been  found  by  a  jury  summoned  by  them.  R. 
V.  Harland  and  others,  1  P.  &  D.  33  ;  S.  C,  8  A.  &  E.  826  ;  2  M.  &  Rob.  141  ; 
R.  V.  Hake,  4  Man.  &  Ry.  483,  n.  The  inquisition  must  set  forth  the  estate 
pessessed  by  the  party  in  the  property  disputed.  R.  v.  Bowser,  8  F).  P.  C. 
128.  On  these  statutes  it  was  doubted  whether  any  but  a  freeholder  could  have 
restitution  ;  and,  therefore,  the  21  Jac.  I.  applied  the  power  confen-ed  by  the 
former  acts  to  the  restitution  of  possession  of  which  tenants  for  terms  of  jears, 
tenants  by  copy  of  court  roll,  guardians  by  knight  service,  and  tenants  by  elegit, 
statute  merchant,  or  statute  stajjle,  had  been  forcibly  deprived  ;  on  this  account 
the  prosecutor's  interest  in  the  premises  must  be  stated  in  the  indictment.  Ld. 
Kenyon,  R.  v.  Wilson  and  others,  8  T.  R.  357.  Under  these  acts,  therefore,  a 
prosecutor  who  is  a  freeholder  or  leaseholder,  etc.,  may  have  restitution  on  con- 
viction of  the  party  of  whose  dispossession  he  complains.  This  restitution  may 
be  awarded  by  the  court  of  quarter  sessions,  as  justices  of  the  peace  are  expressly 
empowered  to  grant  it ;  and  in  this  respect  they  act  as  judges  of  record  (3  B.  & 
Ad.  688,  Littledale,  J.)  ;  and  have  greater  power  than  justices  of  oyer  and  ter- 
miner and  gaol  delivery,  who  cannot  grant  restitution,  but  can  only  punish  the 
ofiender.     Hawk.  b.  1,  c.  64,  s.  61  ;   Bac.  Abr.  Forcible  Entry  (F). 

It  seems  to  have  been  at  one  time  supposed  that  greater  force  was  necessary 
to  sustain  an  indictment  for  forcible  entry  at  common  law,  than  under  the  statutes 
(R.  V.  Bake,  3  Burr.  R.  1731)  ;  but  the  obser.vations  of  Ld.  Kenyon,  in  R.  v. 
"Wilson,  8  T.  R.  357,  seem  to  negative  this  distinction,  and  to  place  botli  proceed- 
ings on  their  true  ground.  "  I  do  not  know,"  said  he,  "  that  it  has  ever  been 
decided  that  it  is  necessarj'  to  allege  a  greater  degree  of  force  in  an  indictment 
at  common  law  for  a  forcible  entry,  than  in  an  indictment  on  the  statutes  ;  there- 
fore an  indictment  at  common  law,  charging  the  defendants  with  having  entered 
unlawfully  and  iiyith  strong  hand,  is  good;"  and  Le  Blanc  and  Lawrence,  JJ., 
added  that  the  words  with  strong  hand  mean  something  more  than  vi  et  arniis,  or 
a  common  trespass,  viz.,  the  degree  of  violence  amounting  to  a  breach  of  the 
public  peace,  and  therefore  indictable  as  forcible  entry.  See  8  T.  R.  361,  363. 
In  truth,  there  is  no  good  sense  in  any  distinction  as  to  the  degree  of  force  indict- 
able in  eitlier  way  ;  but  in  neither  case  will  a  mere  entry  by  an  open  door  or  win- 
dow, or  with  a  key,  however  j)rocurcd,  as  by  trick  and  contrivance,  suffice  (Com. 
Dig.  Forcible  Entry  (A)  ;  3  Hawk.  b.  1,  c.  64,  s.  26)  ;  nor  ;in  entry  to  wiiich 
the  possessor  is  induced  by  tln-eats  of  destroying  his  cattle  or  goods  (Ilawk.  b.  1, 
c.  64,  s.  25)  ;  but  an  entry  effected  by  an  actual  bre;iking  of  a  dwelling-Iiouse,  or 
attended  by  an  actual  array  of  force,  will  be  indictable  in  eitlier  form.  The  true 
distinction  is,  that  on  an  indictment  at  common  law  tlie  prosecutor  needs  only  to 
prove  a  peaceable  possession  at  the  time  of  the  ouster;  and  that  then,  as  he 
alleges  no  title,  so  he  can  have  no  restitution  ;  while  in  an  indictment  on  the 
statute  of  Richard,  his  interest,  viz.,  a  seisin  in  fee,  must  be  alleged ;  on  the 

459 


(489)  OFFENCES  AGAINST  PKOPERTY. 

(40.3)  Forcible  entry.     Form  in  use  in  Philadeljihia.      First  count,  at  com- 
mon law. 
(40G)  Second  count.     Entry  upon  freehold. 

(497)  Third  count.      Pantry  upon  leasehold. 

(498)  Breaking  and  entering  a  close  and   cutting  down  a  tree,  under  the 

Pennsylvania  act. 

(489)  General  frame  of  indictment  at  common  law. 

That  A.  B.,  late  of,  etc.,  C.  D.,  late  of,  etc.,  and  E.  F.,  late  of, 
etc.,  together  with  divers  other  persons,  to  the  number  of  six  or 
more,  whose  names  are  to  the  jurors  aforesaid  as  yet  unknown, 
on,  etc.,  with  force  and  arms,  and  with  pistols,  staves,  and  other 
offensive  weapons,  etc.,  into  a  certain  messuage  or  garden(6) 
there  situate,(c)  and  then((/)  and  there  being  in  the  peaceable 
possession(f')  of  G.  H.,  unlawfully,  violently,  and   injuriously, 

statute  of  James,  the  existence  of  a  term  or  other  tenancy;  and  on  these  statutes 
restitution  will  be  granted.  1  Brevard  119  ;  1  Greenl.  31.  It  must  be  observed, 
however,  that,  even  on  these  statutes,  proof  that  the  prosecutor  holds  colorably 
as  a  freeholder  or  leaseholder  will  suffice  ;  and  that  the  court  will  not,  on  the 
trial,  enter  into  the  validity  of  an  adverse  claim  made  by  the  defendant,  which 
he  ought  to  assert,  not  by  force,  but  by  action.  Per  Vaughan,  B.,  in  R.  v.  Wil- 
liams, Monmouth  Summer  Assizes,  1828,  Dickinson's  Q.  S.  378;  confirmed  on 
motion  for  a  new  trial.  And  see  Jayne  v.  Price,  5  Taunt.  325  ;  1  Marsh.  68,  S. 
C.  ;  Button  v.  Tracy,  4  Conn.  79  ;  "Res.  v.  Shryber,  1  Dall.  68  ;  People  v.  An- 
thony, 4  Johns.  198;  People  v.  Rickert,  8  Cow.  226. 

See  the  subject  generally  examined  in  Wh.  Cr.  L.  8th  ed.  §  1083. 

(i)  The  premises  must  be  described  with  certainty ;  and  therefore  an  allega- 
tion that  the  defendant  entered  a  tenement  v/'xW  not  suffice.  3  Leon.  102;  Co. 
Lit.  6,  a;  Torrence  v.  Com.,  9  Barr,  184;  Van  Pool  v.  Com.,  13  Penn.  St.  393. 
The  indictment  must  describe  the  premises  entered,  with  the  same  particularity 
as  in  ejectment.  Thus,  an  indictment  of  forcible  entry  into  a  messuage,  tene- 
ment, and  tract  of  land,  without  mentioning  the  number  of  acres,  was  held  bad 
after  conviction.  M'Nair  et  al.  ii.  Rempublicam,  4  Yeates,  326.  Where  the 
words  were,  "  a  certain  messuage  with  the  appurtenances,  for  a  term  of  years,  in 
the  district  of  Spartanburgh,"  it  was  adjudged  that  the  place  where  was  not 
described  with  sufficient  legal  certainty.  State  v.  Walker  and  Davidson,  Brev. 
MSS.  It  is  sufficient  to  describe  the  premises  as  "  a  certain  close  of  two  acres  of 
arable  land,  situate  in  S.  township,  in  the  county  of  H.,  being  a  part  of  a  large 
tract  of  land  adjoining  lands  of  A.  and  B."     Dean  et  al.  v.  Com.,  3  S.  &  R.  418. 

In  North  Carolina  the  building  must  be  averred  to  be  the  "dwelling-house" 
of  A.  B.,  etc.     State  v.  Morgan,  1  Wins.  (N.  C.)  246. 

(c)  The  same  particularity  is  required  as  under  proceedings  in  ejectment.  Wh. 
Cr.  L.  8th  ed.  §  1109. 

{(1)   See  2  Chit.  C.  L.  220,  222;   2  Q.  B.  Rep.  406. 

{e)  Possession  is  all  that  need  be  laid  at  common  law  (Burd  v.  Com.,  6  S.  & 
R.  252;  Res.  v.  Campbell,  1  Dall.  354);  though  upon  this  averment  alone  res- 
titution cannot  be  awarded.  See  supra,  note  («),  where  this  point  is  fully  dis- 
cussed. Cf.Wh  Cr.  L.  8th  ed.  §  1108,  etc.  Under  the  statutes  either  a  lease- 
hold or  a  freehold  should  be  averred.  To  enforce  restitution,  one  of  these  is 
essential.     Wh.  Cr.  L.  8th  ed.  §  1108. 

460 


FORCIBLE    ENTRY    AND    DETAINER.  (490) 

and  with  a  strong  hand,{f)  did  enter ;  and  that  the  said  A.  B.,  C. 
D.,  and  E.  F.,  together  with  the  said  other  persons,  then  and 
there,  with  force  and  arms,  and  Avith  a  strong  hand,  unlawfully, 
violently,  forcibly,  and  injuriously,  did  expel,  amove, and  put  out, 
the  said  G.  H.  from  the  possession  of  the  said  messuage  and  gar- 
den, and  the  said  G.  H.,  so  as  aforesaid  expelled,  amoved,  and 
put  out  from  the  possession  of  the  same,  then  and  there,  with 
force  and  arras  and  with  a  strong  hand,  unlawfully,  violently, 
forcibly,  and  injuriously  have  kept  out,(^)  from  the  day  and 
year  aforesaid  until  the  taking  out  of  this  inquisition,(A)  and 
still  do  keep  out,  to  the  great  damage  of  the  said  G.  H.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(490)  Ayiother  form  of  same.{i) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  with  an  axe  and  auger, 
unlawfully,  violently,  forcibly,  injuriously,  and  with  a  strong 
hand,  did  enter  into  the  dwelling  house  of  J.  C,  in  said 

(/)  These  words  are  vital ;  greater  force  must  be  averred  than  is  expressed 
by  the  words  vi  et  armis.  Wh.  Cr.  L.  8th  ed.  §  1107  ;  K.  v.  Wilson,  8  T.  R. 
357;  Com.  u.  Shattuck,  4  Cush.  141;  State  v.  Whitfield,  8  Ired.  315.  The 
trespass  must  involve  a  breach  of  the  peace,  or  directly  tend  to  it,  as  being  done 
in  the  presence  of  the  prosecutor,  to  his  terror  or  against  his  will.  State  v.  Mills, 
2  Dev.  420.     But  see  Harding's  case,  1  Greenl.  22. 

((/)  The  same  description  and  degree  of  force  is  necessary  to  constitute  a 
forcible  detainer  as  a  forcible  entry.     Dalt.  126  ;   Hawk.  b.  1,  c.  64,  s.  39. 

(/()  No  indictment  can  wan-ant  an  award  of  restitution,  unless  it  alleges 
that  the  wrongdoer  both  ousted  the  party  aggrieved,  and  continued  in  possession 
at  the  time  of  finding  the  Indictment  ;  for  it  would  be  a  repugnancy  to  award 
restitution  to  one  who  never  was  in  possession,  and  vain  to  award  it  to  one  who 
dees  not  appear  to  have  lost  it.     Hawk.  b.  1,  c.  64,  s.  41. 

(i)  This  count  was  sustained  in  Harding's  case,  1  Greenl.  22. 

"If  the  facts  charged,"  said  Preble,  J.,  "do  not  constitute  an  indictable 
offence  at  common  law,  no  sentence  can  be  pronounced  upon  the  defenilant. 

"  The  earlier  authorities  do  sanction  the  doctrine,  that  at  common  law,  if  a 
man  had  a  right  of  entry  in  him,  he  was  permitted  to  enter  with  force  and  arms, 
when  such  tbrce  was  necessary  to  regain  his  possession.  Hawk.  P.  C.  c.  64, 
and  the  authorities  there  cited.  To  remedy  the  evils  arising  from  this  supposed 
defect  in  the  common  law,  it  was  provided  by  statute  5  Rich.  II.  c.  7,  that  '  none 
should  make  any  entry  into  any  lands  or  tenements  but  in  cases  where  entry  is 
given  by  the  law  ;  and  in  such  cases,  not  with  strong  hand  nor  with  nniltltude 
of  people  but  only  in  a  peaceable  and  easy  manner.'  The  authorities  are  numer- 
ous to  show  that  for  a  trespass — a  mere  civil  injury,  unaccomj)anied  with  actual 
force  or  violence,  though  alleged  to  have  been  committed  with  force  and  arms — 
an  indictment  will  not  lie.  But  In  Rex  v.  Bathurst,  Say.  R.  305,  the  court 
held,  that  forcible  entry  into  a  man's  (/irellinr/-/iouse  was  an  indictable  offence 
at  common  lair,  though  the  force  was  alleged  onl}-  In  the  formal  words  ri  ct  arniis. 
In  Rex  V.  Bake,  3  Burr.  1731,  it  was  held,  that  for  a  ibrcible  entry  an  indictment 
will  lie  at  common  law ;  but  actual  force  must  appear  on  the  face  of  the  indkt- 

461 


(491)  OFFENCES  AGAINST  PROPERTY. 

and  in  his  actual  and  exclusive  possession  and  occupation  with 
his  family,  and  the  said  A.  B.  did  then  and  there  unlawfully, 
violently,  forcibl}',  injuriously,  and  with  a  strong  hand,  bore 
into  said  dwellingdiouse  with  said  auger,  and  cut  away  part  of 
said  house,  and  stove  in  the  doors  and  windows  thereof  with 
said  axe,  said  J.  C.'s  wife  and  children  being  in  said  house, 
thereby  putting  them  in  fear  of  their  lives,  etc, 

(491)  Against  one,  etc.,  at  common  law,  with  no  averment  of  either 
leasehold  or  freehold  possession  in  the  prosecutor.{j) 

That  I.  K.,  at,  etc.,  on,  etc.,  unlawfully,  violently,  forcibly,  and 
injuriously,  did  enter  into  a  certain  lot  of  ground  and  the  stable 

ment,  and  is  not  to  be  implied  from  the  allegation,  that  the  act  was  done  vi  et 
armift.  In  the  King  v.  "Wilson,  8  T.  R.  357,  an  indictment  at  common  law 
charging  the  defcn(hint  with  liaving  unlawfully  and  with  a  strong  hand  entered 
the  ])rosecutor's  mill  and  expelled  liim  I'rom  the  possession,  was  held  good.  In 
this  latter  case,  Lord  Kenyon  remarks,  'God  forbid  these  acts,  if  proved,  should 
not  be  an  indictable  offence ;  the  peace  of  tlie  whole  country  Avould  be  endan- 
gered if  it  wei-e  not  so.'  The  case  at  bar  is  a  much  stronger  one  than  eitlicr  of 
those  cited.  The  peace  of  tlie  state  would  indeed  be  jeopardized,  if  any  law- 
less individual  destitute  of  property  might,  without  being  liable  to  be  indicted 
and  punished,  unlawfully,  violenLly,  and  ivith  a  st7'onr)  hand,  armed  with  an  axe 
and  an (fer,  forcibly  entei-  a  man's  dicelling-house,  then  in  his  actual,  exclusive 
possession  and  occupancy  toith  his  wife  and  cltildren — stace  in  the  doors  and 
■windows,  cutting  and  destroying,  and  ])idting  the  women  and  children  in  fear  of 
their  lives. 

"The  second  objection,  that  no  seisin  is  alleged,  does  not  apply  to  indictments 
for  forcible  entries  at  common  law.  Under  the  statute  of  New  York  against 
forcible  entry,  the  party  aggrieved  has  restitution  and  damages ;  and  lience  it  is 
necessary  tliat  the  indictment  should  state  the  interest  of  the  prosecutor.  The 
People  r.  Shaw,  cited  by  the  defendant's  counsel,  and  the  People  v.  King,  2 
Caines,  98,  are  cases  upon  the  statute  of  that  state.  In  Ilex  v.  Bake,  Mr.  Jus- 
tice AVilmot  remarks  :  '  No  doubt  indictments  will  lie  at  common  law  for  a  forci- 
ble entry,  though  they  are  generally  brought  on  the  acts  of  parliament.  On  the 
acts  of  parliament  it  is  necessary  to  state  tlie  nature  of  the  estate,  because  there 
must  be  restitution  ;  but  they  may  be  brouglit  at  common  law.'  In  the  King  v. 
AVilson,  Lord  Kenyon  says  :  '  No  doubt  the  offence  of  forcible  entry  is  indictable 
at  common  law,  though  the  statutes  give  other  remedies  to  the  party  aggrieved, 
restitution  and  damages  ;  and  therefore  in  an  indictment  on  the  statutes,  it  is 
necessary  to  state  the  interest  of  the  prosecutor.'  Our  statute  contains  no  such 
provision,  and  gives  no  remedy  by  indictment.  It  simply  provides  a  process  to 
obtain  restitution,  leaving  the  parties,  tlie  one  to  liis  action  for  damages,  the 
other  to  liis  liability  to  be  indicted  and  punished  at  common  law. 

"  AVith  respect  to  the  third  objection,  it  is  alleged  in  tlie  indictment  that  the 
house  was  Gates'  dwelling-house,  in  his  actual  and  exclusive  possession  and 
occupation  icith  his  family,  and  that  the  defendant  unlawfully  entered,  etc.  On 
the  wliole  we  think  the  indictment  contains  sufficient  matter  to  warrant  a  judg- 
ment upon  the  verdict  which  has  been  found  against  the  defendant,  and  tlie  mo- 
tion in  arrest  is  accordingly  overruled." 

(j)  Com.  V.  Kinsman,  Sup.  Ct.  Pa.  Dec.  T.  1830,  No.  13.  Sentence  was 
entered  on  this  indictment  after  a  plea  of  guilty. 

462 


FORCIBLE    ENTRY    AND    DETAINER.  (492) 

thereon  erected,  situated  between  N'orth  Alley  and  South  Alley, 
and  between  Delaware  Fifth  and  Delaware  Sixth  streets  in  the 
said  city,  the  said  lot  of  ground  being  forty-nine  feet  north  and 
south  and  sixteen  feet  or  thereabouts  east  and  west  in  dimen- 
sion, then  and  there  being  in  the  peaceable  possession  of  one  T. 
L.,  and  that  the  said  I.  K.  then  and  there,  with  force  and  arms 
and  with  a  strong  hand,  unlawfully,  violently,  forcibly,  and 
injuriously  did  expel,  amove,  and  put  out  the  said  T.  L.  from 
the  possession  of  the  said  premises,  and  the  said  T.  L.  so  as 
aforesaid  expelled,  amoved,  and  put  out  from  the  possession  of 
the  same,  with  force  and  arms,  etc.,  and  with  a  strong  hand, 
unlawfully,  violently,  forcibly,  and  injuriously  has  kept  out, 
from  the  day  and  year  aforesaid  until  the  taking  of  this  inqui- 
sition, and  still  doth  keep  out,  and  other  wrongs  to  the  said  T. 
L.  then  and  there  did,  to  the  great  damage  of  the  said  T.  L.,  to 
the  evil  example  of  all  others  in  the  like  case  offending,  con- 
trary, etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(492)  Forcible  entry  ^  etc.,  into  a  freehold,  on  stat.  5  Rich.  II.{k) 

That  one  J.  N.,  etc.,  at,  etc.,  on,  etc.,  was  seized(/)  in  his 
demesne  as  of  fee,  of  and  in  a  certain  messuage,  with  the 
appurtenances,  there  situate  and  being,  and  the  said  J.  iST.,  being 
so  seized  thereof  as  aforesaid,  J.  S.,  late  of  the  parish  aforesaid, 
in  the  county  aforesaid,  laborer,  afterwards,  to  wit,  on  the  day 
and  year  last  aforesaid,  in  the  parish  aforesaid,  in  the  county 
aforesaid,  into  the  said  messuage  and  appurtenances  aforesaid, 
with  force  and  arms  and  with  a  strong  hand,  unlawfully  did 
enter,  and  the  said  J.  N.  from  the  peaceable  possession  of  the 
said  messuage  with  the  appurtenances  aforesaid,  tlien  and  there, 
with  force  and  arms  and  with  a  strong  hand,  unlawfully  did 
expel  and  put  out,  and  the  said  J.  JST.  from  the  possession 
thereof  so  as  aforesaid,  with  force  and  arms  and  with  a  strong 
hand,  being  unlawfully  expelled  and  put  out,  the  said  J.  S.  from 
the  aforesaid  third  day  of  August,  in  the  year  aforesaid,  until 
the  day  of  the  taking  of  this  inquisition,  from  the  possession  of 
the  said  messuage,  with  the  appurtenances  aforesaid,  with  force 

(Jc)  Archbold's  C.  P.  5th  Am.  ed.  709. 

(/)   Sec  Fitcli  V.  Rempublicani,  3  Yeatcs,  49;   S.  C,  4  Dall.   212;   Resp.  v. 
Shryber,  1  Dall.  G8. 

4t)3 


(494)  OFFENCES   AGAINST   PROPERTY. 

and  arms  and  witli  a  strong  band,  unlawfully  and  injuriously 
then  and  there  did  keep  out,  and  still  doth  keep  out,  to  the 
great  damage  of  the  said  J.  'N.^  against,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(493)  Forcible  entry  into  a  leasehold^  on  stat.  21  Jac.  I.{m) 

{Same  as  in  last  precedent^  adapting  the  form,  however,  to  a  term  of 
years,  as  thus) : 

That  J.  IST.,  etc.,  on,  etc.,  at,  etc.,  was  possessed  of  a  certain 
messuage,  with  the  appurtenances,  there  situate  and  being,  for 
a  certain  term  of  years,  whereof  divers,  to  wit,  ten  years  were 
then  to  come,  and  are  still  unexpired,  and  the  said  J.  N.  being 
so  possessed  thereof,  etc.  {as  in  last  precedent). 

(494)  Forcible  detainer,  on  stat.  8  Hen.  VIII.  or  21  Jac.  I.{n) 

{The  same  as  in  the  last  two  precedents  respectively,  to  the  end  of 
the  statement  of  the  seisin  or  possession,  then  proceed  thus): 

And  the  said  J.  N.,  being  so  seized  {or  possessed)  thereof,  J.  S., 
late,  etc.,  into  the  said  messuage,  with  the  appurtenances  afore- 
said, unlawfully  did  enter,  and  the  said  J.  N.  from  the  peaceable 
possession  of  the  said  messuage,  with  the  appurtenances  afore- 
said, then  and  there  unlawfully  did  expel  and  put  out,  and  the 
said  J.  N.  from  the  possession  thereof,  so  as  aforesaid,  being 
unlawfully  expelled  and  put  out,  the  said  J.  S.  from  the  said 
third  day  of  August,  in  the  year  aforesaid,  until  the  day  of  the 
taking  of  this  inquisition,  from  the  possession  of  the  said  mes- 
suage, with  the  appurtenances  aforesaid,  with  force  and  arms 
and  with  a  strong  hand,  unlawfully  and  injuriously  then  and 
there  did  keep  out,  and  the  said  messuage  with  the  appur- 
tenances and  the  possession  thereof,  then  and  there  unlawfully 
and  forcibly  did  hold,  and  still  doth  hold  from  the  said  J.  !N., 
to  the  great  damage  of  the  said  J.  N.,  against,  etc.,  and  against, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

(m)  Archbold's  C.  P.  5th  Am.  eel.  712.  See  Penn.  v.  Elder,  1  Smith's 
Laws,  3. 

(n)  Archbold's  C.  P.  5th  Am.  ed.  712. 

464 


FORCIBLE    ENTRY    AND    DETAINER.  (490) 

(495)  Forcible  entry.     Fonn  in  use  in  Philadelphia.     First  county 

at  common  law.{o) 

That  A.  B.,  etc,  on,  etc.,  at,  etc.,  together  with  divers  other 
evil  disposed  persons,  to  the  number  of  four  or  more,  whose 
names  are  to  the  jurors  aforesaid  as  yet  unknown,  with  force 
and  arms  and  with  a  strong  hand,  unlawfully,  violently,  for- 
cibly, and  injuriously  did  enter  into  {describing  premises)^  then 
and  there  being  in  the  peaceable  possession  of  C.  D.,  and  that 
the  said  A.  B.,  with  the  said  evil  disposed  persons,  then  and 
there,  with  force  and  arms  and  with  a  strong  hand,  unlawfully, 
violently,  forcibly,  and  injuriously  did  expel,  remove,  and  put 
out  the  said  C.  D.  from  tlie  possession  of  the  said  premises,  with 
the  appurtenances ;  and  the  said  C.  D.  so  as  aforesaid  expelled, 
removed,  and  put  out  from  the  possession  of  the  same,  with 
force  and  arms  and  with  a  strong  hand,  unlawfully,  violently, 
forcibly,  and  injuriously  have  kept  out  from  the  same,  from  the 
day  and  year  aforesaid,  until  the  taking  of  this  inquisition,  and 
still  do  keep  out ;  and  other  wrongs  to  the  said  C.  D.  then  and 
there  did,  to  the  great  damage  of  the  said  C.  D.,  contrary,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(496)  Second  count.     Entry  upon  freehold. 

That  the  said  C.  D.,  on,  etc.,  at,  etc.,  was  seized  in  his  demesne 
as  of  fee,  of  and  in  the  messuage,  tenement,  and  premises  here- 
inbefore specified  and  described,  with  the  appurtenances  thereto ; 
and  the  said  0.  D.  being  so  seized  thereof  as  aforesaid,  the  said 
A.  B.  afterwards,  to  wit,  on  the  day  and  j-ear  aforesaid,  at  the 
county  and  within  the  jurisdiction  aforesaid,  into  the  said  mes- 
suage, tenement,  premises,  and  appurtenances  aforesaid,  with 
force  and  arms  and  with  a  strong  hand,  unlawfully  did  enter, 
and  the  said  C.  D.  from  the  peaceable  possession  of  the  said 
messuage,  tenement,  premises,  and  appurtenances  as  aforesaid, 
then  and  there,  with  force  and  arms  and  with  a  strong  hand, 
unlawfully  did  expel  and  put  out ;  and  the  said  C.  D.,  from  the 
possession  thereof  so  as  aforesaid,  with  force  and  arms  and  with 

(o)  Tliis  form  includes  a  count  at  common  law,  and  a  count  on  each  of  the 
statutes  mentioned  supra,  489,  note. 

VOL.  I.— 30  465 


(498)  OFFENCES  AGAINST  PROPERTY. 

a  stronc^  hand  being  unlawfully  expelled  and  put  out,  from  the 
day  and  year  aforesaid,  until  the  day  of  the  taking  of  this 
inquisition,  from  the  possession  of  the  said  messuage,  tenement, 
premises,  and  appurtenances,  with  force  and  arms  and  with  a 
strong  hand,  unlawfully  and  injuriously  then  and  there  did 
keep  out,  and  still  do  keep  out,  to  the  great  damage  of  the  said 
C.  D.,  contrary,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(497)  l^hird  count.      Entry  upon  leasehold. 

That  the  said  C.  D.,  on,  etc.,  at,  etc.,  was  possessed  of  the  said 
messuage,  tenement,  premises,  and  appurtenances,  as  hereinbefore 
described,  for  a  certain  term  of  years,  whereof  divers,  to  wit, 
two  years,  were  then  to  come,  and  are  still  unexpired  ;  and  that 
the  said  C.  D.  being  so  possessed  thereof,  the  said  A.  B.  after- 
wards, to  wit,  on  the  day  and  year  aforesaid,  at  the  county  and 
within  the  jurisdiction  aforesaid,  into  the  said  messuage,  tene- 
ment, premises,  and  appurtenances  as  aforesaid,  with  force  and 
arms  and  with  a  strong  hand,  unlawfully  did  enter,  and  the  said 
C.  D.  from  the  peaceable  possession  of  the  said  messuage,  tene- 
ment, premises,  and  appurtenances  as  aforesaid,  then  and  tliere, 
with  force  and  arms  and  wnth  a  strong  hand,  unlawfully  did 
expel  and  put  out ;  and  the  said  C.  D.  from  the  possession 
thereof  so  as  aforesaid,  with  force  and  arms  and  with  a  strong 
hand,  being  unlawfully  expelled  and  put  out,  from  the  day  and 
year  aforesaid  until  the  taking  of  this  inquisition,  from  the 
possession  of  the  said  messuage,  tenement,  premises,  and  appur- 
tenances, with  force  and  arms  and  with  a  strong  hand,  unlaw- 
fully and  injuriously  then  and  there  did  keep  out,  and  still  do 
keep  out,  to  the  great  damage  of  the  said  C.  D.,  contrary,  etc., 
and  against,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

(498)  For  breaking  and  entering  a  close  and  cutting  down  a  tree, 
under  the  Pennsylvania  act. 

That  D.  B.  and  J.  T.,etc.,  on,  etc.,  at,  etc.,  into  a  certain  close 
of  the  honorable  J.  H.,  Esq.,  situate  in  the  township  of  Lan- 
caster, and  in  and  upon  the  possession  of  the  said  J.  H.,  Esq., 
into  which  the  said  D.  B.  and  J.  T.  had  not  the  legal  right  of 
entry,  did  enter,  and  one  oak-tree  of  the  said  J.  H.  then  and 
466 


FORCIBLE    ENTRY    AND    DETAINER.  (498) 

there  growing,  then  and  there  did  cut  down  and  fell,  they,  the 
said  defendants,  well  knowing  the  said  oak-tree  to  be  growing 
on  the  land  of  the  said  J.  H.,  and  that  the  land  on  which  the 
said  oak-tree  was  growing  did  not  belong  to  them,  the  said 
defendants,  or  either  of  them,  or  to  any  person  by  whom  they, 
or  either  of  them,  were  authorized,  contrary,  etc.,  and  against, 
etc.{p)    {Conclude  as  in  book  1,  chapter  3.) 

{p)  This  form  was  sustained  by  the  supreme  court  of  Pennsylvania  in 
Moyer  v.  Com.,  7  Barr,  439.  The  indictment  standing;  in  the  phice  of  this  in 
the  first  edition  of  this  work,  is  defective.     See  4  Am.  L.  J.  695. 

467 


(499)  OFFENCES  AGAINST  PROPERTY. 


CHAPTER  X. 

CHEATS. 

I.  CHEATS  AT  COMMON  LAW. 

II.  FALSE  PERSONATION. 

III.  SECRETING  GOODS  WITH  INTENT  TO  DEFRAUD  CREDITORS,  AND 

FRAUDULENT  CONVEYANCE. 
IV.  FRAUDULENT  INSOLVENCY  IN  PENNSYLVANIA. 
V.  VIOLATION  OF  FACTOR  LAW. 
VI.  OBTAINING  GOODS  BY  FALSE  PRETENCE. 

I.  CHEATS  AT  COMMON  LAW. 

(499)  Soiling  by  fiilse  weight  or  measure. 

(500)  Ag.ainst  a  baker  i'or  selling  to  poor  persons  loaves  iiniJer  weight,  and 

obtaining   pay  from  tliem,  under  the  pretence  that   they  were  of 
full  weight. 

(501)  Cheating  at  common  law,  by  false  cards. 

(502)  Second  count.      Cheating  at  common  law,  at  a  game  of  dice 
called  "passage." 

(503)  Information.     Passing  a  sham  bank  note,  the  offence  being  chained 

as  a  false  token. 

(504)  Obtaining  goods  by  means  of  a  sham  bank  note,  as  a  misdemeanor 

at  common  law. 

(505)  Cheat  by  means  of  a  counterfeit  letter. 

(499)  Selling  hj  false  weight  or  measure,{a) 

Tliat  A.  B.,  late  of,  etc.,  on,  etc.,  and  from  thence  until  the 
taking  of  this  inquisition,  did  use  and  exercise  the  trade  and 

(a)   Dickinson's  Q.  S.  6th  ed. 

(Cheats  at  common  laio  f/enerali)/.)  A  mere  private  imposition  short  of  felony, 
and  effected  by  a  "naked  lie,"  without  the  association  of  artful  device  or  false 
token,  voucher,  order,  etc.,  is  not  indictable  as  a  cheat  at  common  law,  unless  it 
is  public  in  its  nature,  and  calculated  to  defraud  numbers,  or  to  injure  the  gov- 
enunent  or  the  public  in  general.  1  East,  P.  C.  817,  821  ;  Dickinson's  Q.  S. 
290;  and  see  10  A.  &  E.  37  ;  2  Per.  &  Dav.  334.  Per  Ld.  Denman.  Forcible 
illustrations  of  the  distinction  between  a  cheat  which  becomes  indictable  or  other- 
wise, as  it  ac(]uires  or  loses  generality,  are  found  in  Wcierbach  v.  Trone,  2  Watts 
&  S.  408  ;  and  Com.  v.  Warren,  6  Mass.  72.  Putting  a  stone  in  a  single  pound 
of  butter,  for  the  purpose  of  cheating  one  person,  is  not  an  indictable  offence  ; 
putting  a  series  of  stones  in  a  series  of  pounds  of  butter,  for  the  purpose  of 

468 


CHEATS.  (499) 

business  of  a  grocer,  and  during  that  time  did  deal  in  the  buy- 
ing and  selling   by  weight  of  (tea,  etc),  and  of  divers  other 

defrauding  the  publi'C,  is.  In  other  oases  prudence  and  caution  would  supply 
sufficient  security  (1  Hawk.  c.  71,  s.  2 ;  2  East,  P.  C,  818;  II.  v,  Gibbs,  1  East,. 
R.  173);  but  the  selling  by  false  weights  and  measures,  though  to  one  person 
only,  or  produeing  false  tokens,  or  taking  other  like  methods  to  cheat,  which 
cannot  be  guarded  against  by  ordinary  care,  was  alwai^s  held  indictable  of- 
fences. R.  V.  Young,  3  T.  R.  98,  per  Butler,  J. ;  R.  v.  Wheatly,  1  Bla.  II.  273  ; 
10  A.  &  E.  37;  2  Burr.  1125,  S.  C.  ;  Cross  r.  Peters,  1  Greeid.  3G7  ;  Cora.  v. 
Hearsey,  1  Mass.  137;  Cora.  v.  Wai-ren,  6  Mass.  72;  Com.  v.  Morse,  2  Mass, 
138  ;  People  v.  Stone,  9  Wend.  182  ;  People  p.  Miller,  14  Johns.  371  ;  People 
V.  Babcocic,  7  Johns.  201  ;  Lambert  v.  People,  9  Cow.  578;  Com.  v.  Speer,  2 
Va.  Cas.  C.5;  State  r.  Patillo,  4  Hawks,  348;  State  v.  Vaughan,  1  Bay,  282; 
State  V.  Wilson,  2  Rep.  Con.  Ct.  135  ;  State  v.  Stroll,  1  Rich.  244 ;  Hill  v. 
State,  I  Yerg.  7G  ;   Wh.  Cr.  L.  8th  ed.  §  1117. 

Such  are  the  following  among  other  frauds.  Those  affecting  the  administra- 
tion of  public  justice,  as  countei'feiting  a  crwlitor's  authority  to  discharge  his 
debtor  from  prison  (tliough,  if  genuine,  it  would  be  good),  whereby  his  liberation 
was  etlec-ted ' ( R.  i\  Fawcitt,  2  East,  P.  C.  82G,  8C2) ;  or  endangering  the  public 
liealth,  by  selling  unwholesome  pixDvisions,  unfit  for  the  food  of  man,  whether  to 
the  public  generally  (R.  c.  Treeve,  2  East,  P.  C.  821),  or  under  a  contract  with 
government  for  supplies  to  particular  bodies,  as  foreign  prisoners  of  war  under  the 
king's  protection  (lb. )  ;  or  the  military  asylum  at  Chelsea.  R,  v.  Dixon,  2  Campb. 
12;  3  M.  &  S.  11,  S.  C  So  in  Pennsylvania,  an  indictment  was  sustained 
against  a  baker  in  tlie  employ  of  the  United  States  arm}',  in  baking  two  hundred 
and  nineteen  bai-rels  of  bread,  and  marking  them  as  weighing  eighty-eight  pounds 
each,  when,  in  fact,  they  severally  weighed  but  sixty-eight  pounds.  Resp.  i\ 
Powell,  I  Dall.  47.  See  2  Rep.  Con.  Ct.  139.  But  this  case  can  now  be  con- 
sidered law  (see  Wh.  Cr.  L.  8th  ed.  §  1119,  etc.),  only  on  the  ground  that  a  false 
token  was  placed  by  the  defendants  on  the  barrels  as  a  mask.  To  make  such 
cheats  indictable  at  common  law  a  false  token  or  weight  must  be  used.  R.  o. 
Eagleton,  33  Eng.  Law  &  E<(.  .545 ;  G  Cox  C.  C.  559.  As  cheats  at  common 
law  are  regarded  frauds  cah;ulated  to  affect  all  persons,  as  selling  bj'  false 
weights  and  measures  (R.  n.  Wheatly,  1  Bla.  R.  273;  R.  v.  Young,  3  T.  R. 
98;  2  Burr.  1125,  S.  C,  overruling  R.  n.  Wood,  1  Sess.  Ca.  217) ;  counterfeiting 
tokens  of  public  authenticity-,  as  the  alnager's  seal,  while  those  duties  remained 
unrepealed  by  11  &  12  Wm.  III.  c.  20,  s.  2  (R.  v.  Edwards,  Tremaine's  P.  C. 
103) ;  playing  with  false  dice  (R.  n.  Leeser,  Cro.  Jac.  497) ;  obtaining  money  from 
a  soldier  on  a  false  pretence  of  having  power  to  discharge  him  (Serlested's  case, 
Leach,  202)  ;  or  getting  the  king's  bountj'  by  enlisting  as  a  soldier,  being  an  ap- 
prentice, liable  to  be  retaken  by  a  master.  R.  i\  Jones,  2  East,  P.  C.  822;  1 
Leach,  174,  S.  C.  In  Virginia  the  rule  has  been  pressed  much  further,  it  hav- 
ing been  held  that  the  procuring  goods,  etc.,  by  means  of  a  note  jiurporting  to  be 
a  bank  note  of  tiie  Ohio  Exporting  and  Importing  Company,  there  being  no  such 
bank  or  company,  is  a  cheat  punishable  by  indi(;tment  at  connnon  law,  if  the  de- 
fendant knew  that  it  was  such  a  false  note.  It  is  necessary  in  such  case  to  aver 
the  scienter  in  tlie  iiidictment.  Com.  v.  Speer,  2  Va.  Cases,  G5  ;  but  sec  State  r. 
Patillo,  4  Hawks,  348.  So,  where  the  defendants  purchased  goods  from  thi'  pro- 
secutor's clerk,  and  gave  in  payment  an  instrument  purporting  to  be  ii  five  dollar 
bill  of  the  Bank  of  Tallahassee,  in  Florida,  the  blanks  of  which  were  filh'd  up, 
except  those  o{)posite  the  words  "cashier"  and  "  president  ;"  but  in  tliose  blanks 
an  illegible  scrawl  was  written,  which,  on  careless  inspection,  miglit  iiave  been 
mistaken  for  the  names  of  those  oiiicers,  and  the  (h'fendants  knew,  l)efore  they 
passed  the  instrument,  that  it  was  worthless ;  it  was  held  in  South  Carolina,  that 

469 


(499)  OFFENCES   AGAINST    PROPERTY. 

goods,  wares,  and  merchandise,  to  wit,  at,  etc.,  aforesaid  ;  and 
that  the  said  A.  B.,  contriving  and  fraudulently  intending  to 
cheat  and  defraud  the  people  of  the  said  state,  whilst  he  used 
and  exercised  his  said  trade  and  business,  to  wit,  etc.,  and  on 
divers  other  days  and  times  between  that  day  and  the  day  of 
taking  of  this  inquisition,  at,  etc.,  did  knowingly,  wilfully, 
falsely,  fraudulently,  and  deceitfully  keep  in  a  certain  shop  there, 
wherein  he  the  said  A.  B.  did  so  as  aforesaid  carry  on  his 
said  trade,  a  certain  false  pair  of  seales(6)  for  the  weighing  of 
goods,  wares,  and  merchandises  by  him  sold  in  the  way  of  his 
said  trade,  which  said  scales  were  then  and  there,  by  artful  and 
deceitful  contrivance,  so  made  and  constructed  as  to  cause  every 
quantity  of  goods,  wares,  and  merchandises  weighed  therein  and 

they  were  guilt}',  at  common  law,  of  cheating  by  a  false  pretence.  State  i\  Stroll, 
1  Rich.  244. 

The  following  are  some  instances  of  frauds  on  individuals,  which,  not  being 
efi'ccted  in  the  course  of  general  practice,  or  by  means  generally  calculated  to  in- 
jure the  public,  are  not  indictable  at  common  law:  selling  a  smaller  as  and  for  a 
larger  quantity  of  an  article,  if  without  using  false  weights  or  measures  ;  this  being 
a  deception  which  could  not  have  taken  effect  but  for  the  buyer's  carelessness  in 
accepting  without  measure  (R.  v.  Wheatly,  2  Burr.  1125  (the  beer  case) ;  Cowp. 
S24  ;  East,  P.  C.  817,  819)  ;  or  inducing  an  illiterate  person  to  sign  a  deed  by 
reading  it  to  him  falsely.  State  v.  Justice,  2  Dev.  1!)9.  The  like  where  a  mil- 
ler who  had  received  good  barley  to  gi'ind,  delivered  in  return  meal  of  musty  and 
unwholesome  barley,  or  of  barley  mixed  with  other  gi"iin,  but  not  for  the  food 
of  man,  and  the  mill  not  being  a  soke  mill,  to  which  certiiin  residents  were  ob- 
liged to  resort  to  grind  their  corn.  R.  r.  Haynes,  4  M.  &  S.  220.  See  C  East, 
133.     So  as  to  obtaining  money  of  A.,  by  pretending  to  come  by  command  of 

B.  to  receive  money  (R.  r.  Jones,  2  Ld.  Raym.  1013  ;  Salk.  379  ;  6  Mod.  105,  S. 

C.  ;  see  2  East,  P.  C.  818;  1  Hawk.  c.  71,  s.  2);  or  detaining  part  of  corn  sent  to 
])e  ground.  Channel's  case,  Stra.  793.  On  the  same  principle,  it  is  not  an  in- 
dictable offence  to  get  possession  of  a  note,  under  pretence  of  wishing  to  look  at 
it,  and  carrying  it  away  and  refusing  to  return  it  (People  r.  Miller,  14  Johns. 
37)  ;  nor  to  obtain  money  by  falsely  rejiresenting  a  spunous  note  of  hand  to  be 
genuine  (State  v.  Stroll,  1  Rich.  244;  State  v.  Patillo,  4  Hawks,  348;  see  Com. 
('.  Sjieer,  2  Va.  Cases,  65)  ;  nor  to  pretend  to  have  money  ready  to  pay  a  debt, 
and  thereby  obtaining  a  I'cceipt  in  discharge  of  the  debt,  without  paying  the 
money  (People  r.  Babcock,  7  Johns  201)  ;  nor  to  put  a  stone  in  a  pound  of  butter 
so  as  to  increase  its  weight  (Weierbach  r.  Trone,  2  Watts  &  S.  408)  ;  nor  to  obtain 
goods  on  credit,  by  falsely  pretending  to  be  in  trade,  and  to  keep  a  gi'ocery  shop, 
and  giving  a  note  for  the  goods,  in  a  fictitious  name  (Com.  v.  Warren,  6  Mass.  72)  ; 
nor  to  obtain,  in  violation  of  an  agreement  and  by  false  pretences,  possession  of  a 
deed  lodged  in  a  third  person's  hands  as  an  escrow.  Com.  v.  Hearsey,  1  Mass. 
137.     See  Wh.  Cr.  L.  8th  ed.  §§  1119  et  seq. 

(h)  The  fraudulent  instrument  must  be  specified.  It  is  not  enough  to  say  "  by 
certain  fidse  devices,"  etc.  2  East,  P.  C.  c.  18,  s.  18;  R.  r.  Closs,  D.  k  B.  460. 
To  charge  as  a  "common  cheat"  is  plainly  inade<|uate.  State  r.  Johnson,  1 
Chipman,  120.  ]5ut  it  is  not  necessary  to  set  ibrth  the  devices  used  more  specially 
than  they  appeared  to  the  ])arty  cheated  at  the  time,  and  then  to  aver  their  falsity. 
Ibid.  ;  Wh.  Cr.  L.  8th  ed.  §  1129. 

470 


CHEATS. 


(f.OO) 


sold  thereby,  to  appear  of  greater  weight  than  the  real  and  true 
weight,  by  one  tenth  part  of  such  apparent  weight ;  and  tliat 
the  said  A.  B.,  on,  etc.,  aforesaid,  at,  etc.,  aforesaid  (he  the  said 
A.  B.  then  and  there  well  knowing  the  said  scales  to  be  false  as 
aforesaid),  did  knowingly,  wilfully,  and  fradulently  sell  and 
utter  to  one  C.  D.,(e)  a  citizen  of  the  said  state,  certain  goods 
in  the  way  of  his  said  trade,  to  wit,  a  large  quantity  of  tea, 
weighed  in  and  by  the  said  false  scales,  and  as  and  for  ten 
pounds  weight  of  tea,  whereas,  in  truth  and  in  fact,  the  weicjht 
of  the  said  tea,  so  sold  as  aforesaid,  was  short  and  deficient  of 
the  said  weight  of  ten  pounds,  by  one  tenth  part  of  the  said 
weight  of  ten  pounds,  to  wit,  at,  etc.,  aforesaid,  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(500)  Against  a  baker  for  selling  to  poor  persons  loaves  under  weight, 
and  obtaining  pay  from  them,  under  the  pretence  thai  they 
were  of  full  weight.{d) 

That  heretofore,  to  wit,  on  the  twenty-first  day  of  January, 
1854, at  the  parish  of  Great  Yarmouth,  in  the  borough  of  Great 
Yarmouth,  and  within  the  jurisdiction  of  this  court,  J.  Eao-le- 
ton,  of  the  parish  aforesaid,  in  the  borough  aforesaid,  baker, 
unlawfully,  knowingly,  and  designedly,  did  falsely  pretend  to 
one  William  Christmas  I^utman,  then  being  relieving  otHcer  of 
the  said  parish  of  Great  Yarmouth,  that  he  the  said  John  Eagle- 
ton  had,  on  the  day  and  year  last  aforesaid,  supplied  and  delivered 
to  one  Samuel  Lingwood,  he  being  a  poor  person  of  the  said 
parish,  two  loaves  of  bread,  and  that  each  of  the  said  two 
loaves  of  bread  then  weighed  three  pounds  and  one  half  of  a 
pound,  by  means  of  which  said  false  pretence  the  said  John 
Eagleton  did  then  and  there  unlawfully  attempt  and  endeavor, 
fraudulently,  falsely,  and  unla\vfnlly,  to  obtain  from  the  guar- 
dians of  the  poor  of  the  said    parish,  a  sum  of   money,  to  wit, 

(c)  It  is  better  to  aver  <a  particular  person  defrauded,  though  it  seems  eiioufrh, 
if  such  be  the  fact,  to  allege  the  sale  to  have  been  to  divers  citizens  unknown.  2 
Stark.  C.  P.  4G7.  That  the  person  defrauded  must  be  named,  see  State  v.  Wood- 
son, 5  Humph.  55.  But  that  does  not  apjdy  to  cases  of  using  false  weights  or 
tokens  with  intent  to  cheat  the  public.  11.  v.  Gibbs,  8  Moil.  58  ;  K.  r.  Closs, 
D.  &  B.  4G0,  and  observations  in  Wh.  Cr.  L.  8th  ed.  §  1128.  In  any  view  the 
jiarty  cheated  may  be  averred  as  a  "  person  unknown." 

(r/)  This  count  was  sustained  in  11.  v.  Eagleton,  33  Eng.  L.  &  Ya\.  545  ;  6 
Cox,  C.  C.  559. 

471 


(502)  OFFENCES  AGAINST  PROPERTY. 

the  sum  of  Is.  of  the  moneys  of  the  said  guardians,  with  the  intent 
thereby  then  and  there  to  defraud  ;  whereas,  in  truth  and  in  fact, 
the  said  two  loaves  of  bread  did  not  each  weigh,  nor  did  either 
of  them  weigh,  three  pounds  and  one  half  of  a  pound  ;  against 
the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  of  our  lady  the  queen,  her  crown  and  dignity. 

(501)  Cheating  at  common  law,  by  false  cards.{e) 

That  A.  B.  et  a/.,  being  persons  of  dishonest  conversation,  and 
common  gamblers  and  deceivers,  with  false  dice  and  cards,  on, 
etc.,  at,  etc.,  contriving,  practising,  and  falsely,  fraudulently,  and 
deceitfully  intending  one  A.  S.,  with  false  cards  and  false  play, 
falsely,  unlawfully,  unjustly,  fraudulently,  and  deceitfully  to 
deceive  and  defraud,  and  from  the  said  A.  S.,  by  means  of 
the  said  false  cards  and  false  play,  craftily  and  subtlj'^,  falsely, 
fraudulently,  and  deceitfully,  different  sums  of  money  to  acquire 
and  obtain,  then  and  there  did  solicit,  incite,  provoke,  and  pro- 
cure the  said  A.  S.  to  play  with  them,  the  said  A.  B.  et  al.,  at  a 
certain  unlawful  game,  called  whist,  for  divers  sums  of  money, 
by  means  whereof  the  said  A.  S.  did  then  and  there  play  with 
the  said  A.  B.,  etc.,  at  the  said  unlawful  game,  called  whist,  for 
divers  sun)s  of  money,  and  that  the  said  A.  B.  et  al.  did  then 
and  there,  with  force  and  arms,  at  the  said  unlawful  game, 
called  whist,  by  means  of  false  cards  and  false  play,  subtly, 
falsely,  unlawfully  and  fraudulently  receive,  have,  and  obtain 
into  their  own  hands  and  possession,  the  sum  of  eighty  pounds 
of  lawful  moneys  of  the  said  A.  S.  and  from  the  said  A.  S.,  and 
the  same  did  then  and  there  carry  away,  to  the  great  damage, 
etc.,  and  against,  etc.(/)     {Conclude  as  in  book  1,  chapter  3.) 

(502)  Second  count.     Cheating  at  common  law,  at  a  game  of  dice 
called  '■''passage." 

That  the  defendants,  being  such  persons  as  aforesaid,  on,  etc., 
at,  etc.,  did  solicit,  incite,  provoke,  and  procure  the  said  A.  S.  to 
play  with  them,  the  said  A.  B.  et  al.,  at  a  certain  unlawful  game, 
called  passage,  for  divers  sums  of  money,  by  means  whereof  the 

(e)  Stark.  C.  P.  444. 

(f)  K.  V.  Arnojie,  Trera.  91  ;  and  see  K.  v.  Bctsworth,  Trem.  93. 

472 


CHEATS.  (503) 

said  A.  S.  did  then  and  there  play  with  the  said  A.  B.  et  al.,  at 
the  said  unlawful  crame,  called  passage,  for  divers  sums  of  money, 
and  that  the  said  A.  B.  et  al.  did  then  and  there,  with  false  dice, 
and  by  false  throwing  of  the  same,  that  is  to  say,  by  slurring 
the  said  dice,  subtly,  falsely,  unlawfully,  and  fraudulently  receive, 
have,  and  obtain  into  their  own  hands  and  possession,  the  sum 
of  eighty  pounds  of  the  lawful  moneys  of  the  said  A.  8  and 
from  the  said  A.  S.,  and  the  same  did  then  and  there  carry  away, 
to  the  great  damage,  etc.,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(503)  Information.     Passing  a  sham  hank  note,  the  offence  being 
charged  as  a  false  token.{g) 

D.  K.,  attorney  to  the  state  of  Connecticut,  for  the  county  of 
New  Haven,  now  here  in  court,  information  makes  that  G.  B. 
S.,  of  the  town  of  Xew  Haven,  in  the  county  of  Kew  Haven,  on, 
etc.,  did  wilfully  and  designedly,  and  with  intent  to  cheat  and 
defraud  one  F.  W.  I.,  of  said  town  of  New  Haven,  utter  and 
pass,  to  the  said  F.  W.  I.,  as  money,  a  certain  false  token  made 
and  executed  after  the  general  similitude  of  a  bill  of  a  banking 
company  intended  as  money,  and  purporting  to  be  a  bank  bill 
of  the  denomination  of  five  dollars,  and  to  have  been  issued  by 
a  banking  company  or  corporation  in  the  state  of  New  York,  by 
and  under  the  name  of  "The  Globe  Bank,"  and  purj)orting  also 
to  be  signed  by  N.  B.,  as  president,  and  to  be  countersigned  by 
S.  D.  D.,  as  cashier  thereof;  which  false  token  is  of  the  following 
purport  and  effect,  that  is  to  say  [here  set  out  the  token  or  bill) ; 
whereby  and  by  means  of  said  false  token  the  said  G.  B.  S.  did 
then  and  there  knowingly  and  fraudulently  obtain  from  the 
said  F.  W.  I.,  certain  goods,  the  property  of  the  said  F.  W.  I., 
that  is  to  say,  one  pair  of  boots,  of  the  value  of  five  dollars; 
whereas,  in  truth  and  in  fact,  at  the  time  when  said  false  token 
was  so  uttered  and  passed  to  the  said  F.  W.  I ,  no  such  bank- 
ing company  or  corporation  existed  in  the  state  of  New  York 
as ''The  Globe  Bank,"  nor  did  such  banking  com}tauy  or  cor- 
poration ever  have  existence  in  said  state  of  New  York,  nor  was 

((7)  On  this  information,  which  was  drawn  l)y  ISIr.  Kinibcrly,  a  loading  lawyer 
of  New  Haven,  afterwards  United  States  senator  iVoui  Connecticut,  the  defendant 
was  convicted  and  sentence  jjassed. 

473 


(504)  OFFENCES  AGAINST  PROPERTY. 

there  at  the  time  when  said  false  token  was  uttered  and  passed 
to  the  said  F.  W.  I.  as  aforesaid,  or  at  any  other  time,  any  bank- 
ing company  or  corporation  in  the  state  of  New  York  known 
by  or  doing  business  under  the  name  of  "The  Globe  Bank,"  but 
said  pretended  bank  bill,  and  pretended  signatures  thereto,  were 
and  are  wholly  false,  fictitious,  and  fraudulent.  All  which  is  to 
the  great  damage  and  deception  of  the  said  F.  W.  L,  against, 
etc.,  and  contrary,  etc. 

Whereupon  the  attorney  prays  the  advice  of  this  honorable 
court  in  the  premises. 

(504)  Obtaining  goods  hy  means  of  a  sham  hank  note^  as  a 
misdemeanor  at  common  law. 

That  J.  S.,  etc.,  on,  etc.,  at,  etc.,  falsely  and  deceitfully  did 
obtain  and  get  into  his  hands  and  possession,  from  one  T.  C, 
three  yards  of  velvet,  etc.,  of  the  value  in  the  whole  of  nine 
dollars  eighty-seven  and  a  half  cents,  of  the  goods  and  chattels, 
wares  and  merchandise  of  the  said  T.  C,  and  bank  notes  and 
money  of  the  said  T.  C.  to  the  further  amount  of  ten  dollars 
and  twelve  and  a  half  cents,  by  color  and  means  of  a  certain 
false  note  and  token,  purporting  to  be  a  bank  note  for  twenty 
dollars,  issued  and  purporting  to  be  payable  on  demand  by  the 
Ohio  Exporting  and  Importing  Company-,  at  their  bank  in  Cin- 
cinnati, and  purporting  to  be  subscribed  by  one  Z.  S.,  president, 
and  countersigned  by  J.  L.,  cashier,  and  which  said  false  note 
the  said  T.  C.  believed  to  be  a  true  bank  note  for  twenty  dollars ; 
and  that  he  the  said  J.  S.  did  thereby  and  therefor  procure  the 
said  T.  C.  then  and  there  to  deliver  to  him  the  said  J.  S.  the 
goods  and  chattels,  wares,  merchandise,  bank  notes  and  money 
of  him  the  said  T.  C.  aforesaid,  he  the  said  J.  S.  then  and  there 
well  knowing  the  said  note  to  be  false  and  fraudulent  as  afore- 
said, to  the  great  injury  and  deception  of  him  the  said  T.  C,  to 
the  evil  example,  etc.,  and  contrary  to  the  form  of  the  statute, 
etc. (A)    [Conclude  as  in  book  1,  chapter  3.) 

Qi)  Com.  V.  Speer,  2  Va.  Cases,  65.  The  prisoner  was  convicted,  but,  before 
judgment  was  rendered,  the  court  below  adjourned  to  general  court  the  following 
(juestions:  1.  Is  the  falsely  passing  as  a  true  note  a  false  and  forged  note  pur- 
porting to  be  a  note  of  the  Bank  of  the  Ohio  Exporting  and  Importing  Company, 
and  purporting  to  be  signed  and  payable  as  in  the  indictment  is  set  forth,  and 
procuring  the  goods  and  other  property  in  the  indictment  mentioned  for  the  said 

474 


CHEATS.  (505) 

(505)  Cheat  by  meayis  of  a  counterfeit  letter.{i) 

That  J.  G.,  etc.,  on,  etc.,  at,  etc.,  a  certain  false  and  counter- 
feit letter,  in  the  name  of  a  certain  T.  G.,  of  the  township  afore- 
said, farmer,  to  a  certain  B,  D.,  in  the  township  of  Plymouth, 
in  the  said  county,  merchant,  directed,  falsely  and  deceitfully 
contrived,  made,  imagined,  and  devised,  the  tenor  of  which  said 
false  and  counterfeit  letter  follows  in  these  words,  to  wit: — 

"New  Providence,  December  25th,  1755.  Friend  B.  D.,  let 
the  bearer,  J.  G.,  have  half  a  gallon  of  rum  ;  he  is  going  down 
the  road  a  little  way,  and  at  his  return  send  me  half  a  gallon 
home  by  him,  and  I  will  pay  you  ;  the  latter  end  of  next  week 
I  shall  go  to  town.  T.  G." 

And  afterwards,  to  wnt,  the  day  and  year  aforesaid,  at  Plym- 
outh township  aforesaid,  in  the  county  aforesaid,  the  said  false 
and  counterfeit  letter  to  the  aforesaid  B.  I),  falsely  and  deceit- 
fully did  give  and  deliver,  by  color  and  means  of  which  said 
false  and  counterfeit  letter,  so  as  aforesaid  to  the  said  B.  D. 
delivered,  the  said  J.  G.,  the  day  and  year  aforesaid,  at  Plym- 

fiilse  and  forged  note,  when  no  such  bank  or  company  ever  existed,  eitlier  char- 
tered or  unchartered,  such  a  false  token  or  counterfeit  letter  as  conies  within  the 
true  intent  and  meaninfr  of  the  act  of  assembly,  passed  November,  1789,  and  if 
so,  is  the  indictment  in  this  case  good  and  sufficient  ?  2  Jf  this  is  not  an  otfence 
within  the  act  of  assembly,  is  it  an  indictable  olfence  at  common  law,  and  if  so, 
can  judgment  be  given  against  the  defendant  upon  this  inilictment,  that  he  be 
imprisoned,  the  jury  not  having  assessed  a  line? 

Per  Curiam:  "The  court  is  unanimously  of  opinion,  that  the  falsely  passing 
as  a  true  note  a  false  and  forged  note  purporting  to  be  a  note  on  the  Bank  of  the 
Ohio  Exporting  and  Importing  Company,  and  ])urporting  to  be  signed  and  pay- 
able as  in  the  indictment  is  set  forth,  and  procuring  the  gootls  and  other  j^roperty 
in  the  indictment  mentioned  for  the  said  false  and  forged  note,  when  no  such  bank 
or  company  ever  existed,  either  chartered  or  unchartered,  is  not  such  an  olfence 
as  can  be  prosecuted  under  the  act  entitled  '  An  act  against  those  who  counterfeit 
letters  or  privy  tokens,  to  receive  money  or  goods  in  other  men's  names,'  i)assed 
November  18,  1789. 

''  And  the  court  is  further  unanimously  of  opinion,  that  the  oifence  of  falsely 
procuring  the  goods,  etc.,  of  other  men  by  means  of  a  false  and  counterfeit  note, 
such  as  is  set  forth  in  the  indictment,  knowing  the  same  to  be  false  and  counter- 
feit, is  indictable  as  a  cheat  at  common  law;  but  that  judgment  cannot  be  ren- 
dered against  the  defendant  in  this  case,  because  the  indictment  does  not  expressly 
aver  that  the  said  defendant  knew  that  the  said  note  was  a  false  and  iraudulent 
note." 

The  count  in  the  text  has  been  amended  by  the  insertion  oi"  the  scienter  re- 
quired by  the  court,  though,  even  as  thus  (pialified,  it  is  (luestionable,  whether  a 
more  full  averment  of  the  invalidity  of  the  notes  woidd  not  be  advisable. 

(j)  This  indictment  was  framed  in  1750,  by  Benjamin  Chew,  then  attorney- 
general  of  Pennsylvania. 

475 


(506a)  OFFENCES  AGAINST  PROPERTY. 

outli  township  aforesaid,  in  his  hands  and  possession,  one  half 
gallon  of  rum  of  and  from  the  aforesaid  B.  D.  falsely, '\inlaw- 
fully,  unjustly,  and  deceitfully  did  acquire  and  obtain,  and  the 
said  B.  D.  then  and  there  of  the  aforesaid  one  half  gallon  of 
rum  falsely,  unlawfully,  unjustly,  and  deceitfully  did  deceive 
and  defraud,  to  the  evil  and  pernicious  example  of  all  others  in 
such  case  delinquent,  and  against,  etc.  {Conclude  as  in  hook  1, 
chapte?'  3.) 

II.  FALSE  PERSONATION. 

(506)   Umhr  11  Geo.  IV.  and  1  Wm.  IV.  c.  66,5.  ll.(j) 

That  J.  S.,  late,  etc.,  on,  etc.,  at,  etc.,  before  the  right  honor- 
able Sir  J.  P.,  knight,  one  of  the  barons  of  Her  Majesty's  court 
of  exchequer,  at  Westminster  (the  said  Sir  J.  P.,  knight,  then 
and  there  having  lawful  authority  to  take  any  recognizance  of 
bail  in  any  suit  then  depending  in  the  said  court),  then  and 
there  feloniously  did  acknowledge  a  certain  recognizance  of  bail, 
in  the  name  of  J.  JST.,  in  a  certain  cause  then  depending  in  the 
Baid  court,  wherein  A.  B.  was  plaintitt",  and  C.  D.,  defendant, 
he,  the  said  J.  N.,  not  being  then  and  there  privy  or  consenting 
to  the  said  J.  S.  so  acknowledging  such  recognizance  in  his  name 
as  aforesaid,  against,  etc.,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(506a)  Personating  a  seaman^  under  English  statute. 

The  jurors  for  our  lady  the  queen,  upon  their  oath  present, 
that  J.  S.,  on  the  tirst  day  of  August,  in  the  year  of  our  Lord 
,  in  order  to  receive  certain  pay  then  payable  by  the 
admiralty  ("  any  yay.,  wages.,  allotment.,  -prize  money ^  bounty  money, 
grant,  or  other  allowance  in  the  nature  thereof,  half-pay,  pension,  or 
allowance  from  the  compassionate  fmid  of  the  navy,  jjayable,  or  sup- 
posed to  be  payable  by  the  admii^alty,  or  any  other  money  so  payable 
or  supposed  to  be  payable,  or  any  effects  or  money  in  charge  or  sup- 
jyosed  to  be  in  charge  of  the  admiralty")  did  unlawfully,  falsely,  and 
deceitfully  personate  one  J.  N.,  a  person  then  entitled,  or  sup- 
posed to  be  entitled,  to  receive  the  same  pay  ("  any  person  entitled, 
or  supposed  to  be  entitled,  to  receive  the  same");  against,  etc.{k) 

(/)   Arch.  C.  P.  7th  Am.  cd.  478.  (I)  Arch.  C.  P.  19th  ed.  GG7. 

476 


SECRETING   GOODS,    ETC.  (^07) 

III.  SECRETING  GOODS,  etc. 

(507)  Secreting,  etc.,  with  intent  to  defraud,  etc. 

(508)  Second  count.     Same,  with  intent  to  defraud  and  prevent  such 

property  from  being  made  liable  for  payment  of  debts. 

(509)  Third  count.     Same,  not  specifying  property. 

(510)  Fourth  count.     Averring  intent  to  defraud  persons  unknown. 

(511)  Fifth  count.      Same,  not  specifying  goods,  with  intent  to  de- 

fraud persons  unknown. 

(512)  Sixth  count.     Same,  with  intent  to  prevent  property  from  being 

levied  on. 

(513)  Another  form  on  the  same  statute.     First  count,  intent  to  defraud,  to 

prevent  property  being  made  liable,  etc. 

(514)  Second  count.     Same,  with  intent  to  defraud  another  person. 

(515)  Third  count.     Secreting,  assigning,  etc.,  with  intent  to  defraud 

two,  etc. 

(516)  Fourth  count.     Secreting,  etc.,  averring  creditors  to  be  judg- 

ment creditors. 

(517)  Fifth  count.      Same,  in  another  shape. 

(518)  Fraudulent  conveyance  under  Stat.  Eliz.  ch.  5,  s.  3. 

(507)  First  count.     Secreting^  etc.,  with  intent  to  defraud,  etc.{l) 

That  A.  K.,  etc.,  on,  etc.,  at,  etc.,  being  a  person  of  an  evil  dis- 
position, ill  name  and  fame,  and  of  dishonest  conversation,  and 

(J)  The  26th  section  of  the  act  abolishing  imprisonment  for  debt  in  New  York 
(Laws  of  1831,  402),  and  the  20th  section  of  the  act  under  the  same  title  in  Penn- 
sylvania (Pamph.  Laws,  1842,  339;  Purd.  585),  make  it  penal  in  a  delator  to 
secrete  his  goods  with  intent  to  defraud  his  creditors.  The  precedent  in  tlic  text 
has  been  several  times  sustained  in  Ncav  York,  though  it  has  not  yet  received  a 
final  adjudication  in  the  Pennsylvania  courts.  In  New  York,  the  question  came 
up  in  People  v.  Underwood  (IG  Wend.  54G).  In  that  case  exception  was  taken, 
because  it  was  neither  averred  nor  proved  that  the  prosecuting  creditors  were 
judgment  creditors.  Bronson,  J.,  in  noticing  this  position,  said:  "The  2Gth 
section  of  the  statute,  under  which  the  defendant  was  indicted,  declares  that  '  any 
person  who  shall  remove  any  of  his  property  out  of  any  county  with  intent  to  pre- 
vent the  same  from  being  levied  upon  by  any  execution,  or  who  shall  secrete, 
assign,  convey,  or  otherwise  dispose  of  any  of  his  property  with  intent  to  defraud 
any  creditor,  or  to  prevent  sucli  property  being  made  liable  for  the  payment  of 
his  debts,  and  any  person  who  shall  receive  such  property  with  such  intent,  shall, 
on  conviction,  be  deemed  guilty  of  a  misdemeanor.'  The  language  of  tlie  act 
plainly  extends  to  all  creditors,  and  I  can  perceive  no  sufficient  reason  for  re- 
stricting its  construction  to  such  creditors  as  have  obtained  judgments  ibr  their 
demands.  The  fraudulent  removal,  assignment,  or  conveyance  of  pro])i'rty  by  a 
debtor,  which  the  legislature  intended  to  i)unish  criminally,  usually  takes  place  in 
anticipation  of  a  judgment,  and  for  the  very  purpose  of  defeating  the  creditor  of 
the  fruits  of  his  recovery.  If  there  must  first  be  a  judgment  befon!  the  crime 
can  be  committed,  the  statute  will  be  of  very  little  j)id)lic  importance.  This  is 
not  like  the  case  of  a  creditor  seeking  a  civil  remedii  against  a  Irauduhuit  debtor. 
There  the  creditor  must  complete  his  title  by  judgment  and  execution,  before  he 
can  control  the  debtor  in  the  disposition  of  his  property  ;  he  must  have  a  certain 

477 


(508)  OFFENCES  AGAINST  PROPERTY. 

unlawfully  devising  and  intending  to  defraud  A.  C.  R.  and  II. 
B.,  merchants,  doing  business  in  the  city  of  New  York,  under 
the  name,  style,  and  firm  of  R.  and  B.,  said  firm  of  R.  and  B. 
being  creditors  of  him  the  said  A.  K.,  on,  etc.,  at,  etc.,  unlaw- 
fully did  secrete,  assign,  convey,  and  dispose  of  (?n,)  the  personal 
property  of  him  the  said  A.  K.,  to  wit,  etc.  {stating  goods,  as  in 
larceny)^  with  intent  to  defraud  the  said  firm  of  R.  and  B.,  then 
and  there  being  creditors  of  him  the  said  A.  K.,  to  the  great 
damage  of  the  said  A.  C.  R.  and  H.  B,,  doing  business  as  afore- 
said under  the  name,  style,  and  firm  of  R.  and  B,,  against,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(508)  Second,  count.     Same,  with  intent  to  defraud  and  prevent  such 
property  from  being  made  liable  for  payment  of  debts. 

That  the  said  A.  K.,  further  devising  and  intending  to  defraud 
the  said  A.  C.  R.  and  II.  B.,  doing  business  under  the  name, 
style,  and  firm  of  R.  and  B,,  so  being  creditors  as  aforesaid  of 
him  the  said  A.  K.,  afterwards,  to  wit,  on  the  day  and  year 
aforesaid,  with  force  and  arms,  at  the  ward,  city,  and  county 
aforesaid,  wickedly,  fraudulent!}',  and  unlawfully  did  secrete, 
assign,  convey,  and  dispose  of  certain  other  property  of  him  the 
said  A.  K.,  to  wit,  etc.,  with  intent  then  and  there  to  defraud  the 
said  A.  C.  R.  and  II.  B.,  doing  business  under  the  name,  style, 
and  firm  of  R.  and  B.  as  aforesaid,  and  then  and  there  being 
creditors  of  him  the  said  A.  K.,  and  to  prevent  such  property 
being  made  liable  for  the  payment  of  the  debts  of  him  the  said 
A.  K.,  to  the  great  damage  of  the  said  A.  C.  R.  and  H.  B.,  against, 
etc.,  and  against,  etc.     {Conclude  as  in  book  ],  chapter  3.) 

claim  upon  the  goods  before  he  can  incjuire  into  any  alleged  fraud  on  the  part  of 
the  debtor.  Wiggins  i'.  Armstrong,  2  Johns.  Ch.  144.  But  this  is  a  public  pro- 
secution, in  which  the  creditor  has  no  special  interest.  Tlie  legislature  has  re- 
lieved the  honest  debtor  from  imprisonment,  and  subjected  Ihe  fraudulent  one  to 
punishment  as  for  a  criminal  offence.  The  crime  consists  in  assigning  or  other- 
wise disposing  of  his  property  with  intent  to  defraud  a  creditor,  or  to  prevent  it 
from  being  made  liable  for  the  payment  of  his  debts.  The  public  offence  is  com- 
plete, although  no  creditor  may  be  in  a  condition  to  question  the  validity  of  the 
transfer  in  the  form  of  a  civil  remedy.  I  thiidv  tlie  jury  were  properly  instructed 
on  this  question,  and  that  the  exception  should  be  overruled."  See  Wh.  Cr.  L. 
8th  ed.  §  1239. 

As  to  the  extent  of  "  creditors"  in  the  act,  see  .Tohnes  v.  Potter,  5  S.  &  R.  519, 
■where  it  was  held  that  the  word  included  not  only  persons  whose  debts  are  due 
and  payable,  but  those  whose  debts  are  not  yet  due. 

(m)   See  supra,  notes  to  form  2,  as  to  this  joinder. 

478 


SECRETING   GOODS,   ETC.  (^12) 

(509)   Tliird  count.     Same ^  not  specif ying  ^jroperty. 

That  the  said  A.  K.,  on,  etc.,  at,  etc.,  fraudulently,  wickedly, 
and  unlawfully  did  secrete,  assign,  convey,  and  otherwise  dispose 
of  his  property,  wMth  intent  to  defraud  the  said  A.  C.  R.  and  H.  B., 
then  and  there  being  creditoi^s  of  him  the  said  A.  K.,  and  then 
and  there  doing  business  under  the  name,  style,  and  firm  of  R. 
and  B,,  against,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(510)  Fourth  count.     Averring  intent  to  defraud  persons  unknown. 

That  the  said  A.  K.,  being  a  person  of  an  evil  disposition  [as 
in  the  first  count  mentioned),  further  devising  and  intending  to 
defraud  divers  other  persons  to  the  jurors  aforesaid  unknown, 
creditors  of  him  the  said  A.  K.,  afterwards,  to  wit,  on  the  said 
fourth  day  of  April,  in  the  year  aforesaid,  with  force  and  arms, 
at  the  ward,  city,  and  county  aforesaid,  fraudulently,  wickedly, 
and  unlawfully  did  secrete,  assign,  convey,  and  otherwise  dis- 
pose of  {stating  goods),  of  the  property  of  him  the  said  A.  K., 
with  intent  then  and  there  to  defraud  divers  persons  to  the  jurors 
aforesaid  unknown,  then  and  there  being  creditors  of  him  the 
said  A.  K.,  against,  etc.,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(511)  Fifth  count.      Same,  not  specifying  goods,  with  intent  to 

defraud  persons  unknown. 

That  the  said  A.  K.,  afterwards,  on,  etc.,  at,  etc.,  wickedly, 
fraudulently,  and  unlawfully  did  secrete,  assign,  convey,  and 
otherwise  dispose  of  his  property,  with  intent  to  defraud  divers 
other  persons  to  the  jurors  aforesaid  unknown,  then  and  there 
being  creditors  of  him  the  said  A.  K,,  against,  etc.,  and  against, 
etc.     {Conclude  as  in  book  1,  chapter  3.) 

(512)  Sixth  count.     Same,  with  intent  to  prevent  property  from 

being  levied  on. 

That  the  said  A.  K.,  afterwards,  on,  etc.,  at,  etc.,  wickedly, 
fraudulently,  and  unlawfully  did  secrete,  assign,  convey,  and 
otherwise  dispose  of  his  property,  to  prevent  such  property  being 

479 


(514)  OFFENCES  AGAINST  PROPERTY. 

made  liable  for  the  debts  of  him  the  said  A.  K.,  against,  etc.,  and 
against,  etc.     {Conclude  as  in  hook  1,  chapte?-  3.) 

(513)  Another  form  on  the  same  statute.     First  count,  intent   to 

defraud  to  prevent  property  being  made  liable,  etc.{n) 

That  R.  B.,  etc.,  on,  etc.,  at,  etc.,  wickedly,  fraud ulentlj'-,  and 
unlawfully  devising  and  intending  to  defraud  I.  C.  F.,  the  said 
I.  C.  F.  being  then  and  there  a  creditor  of  him  the  said  R.  in  a 
large  amount,  to  wit,  four  thousand  dollars,  of  his  just  debt  so  as 
aforesaid  due  from  him  the  said  R.  to  him  the  said  L,  did  then  and 
there  fraudulently,  wickedly,  and  unlawfully  secrete  {goods  as  in 
larceny),  being  then  and  there  the  property  of  the  said  R.,  with 
intent  to  defraud  the  said  I.,  being  as  aforesaid  a  creditor  of  the 
said  R.,  and  to  prevent  the  said  specified  goods  and  chattels  and 
property  of  the  said  R.  being  made  liable  for  the  payment  of  the 
debt  aforesaid,  so  as  aforesaid  due  from  him  the  said  R.  to  the 
said  I.,  to  the  great  damage  of  the  said  L,  contrary,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(514)  Second  count.     Same,  with  intent  to  defraud  another  'person. 

That  the  said  R.  B.,  on,  etc.,  wickedly,  fraudulently,  and  un- 
lawfully devising  and  intending  to  defraud  J.  P.  B.,  the  said  J. 
P.  B.  being  then  and  there  a  creditor  of  him  the  said  R.  in  a 
large  amount,  to  wit,  four  thousand  dollars,  of  his  just  debt  so 
as  aforesaid  due  from  him  the  said  R.  to  him  the  said  J.  P.  B., 
did  then  and  there  fraudulently,  wickedlj^  and  unlawfully  secrete 
two  hundred  pressing  plates,  two  screws,  twenty  shafts,  two 
hundred  wooden  frames,  one  horse,  one  wagon,  being  together 
of  the  value  of  two  thousand  dollars,  being  then  and  there  the 
property  of  the  said  R.,  with  intent  to  defraud  the  said  J.  P.  B., 
being  as  aforesaid  a  creditor  of  the  said  R.,  and  to  prevent  the 
said  specified  goods  and  chattels  and  property  of  the  said  R. 
being  made  liable  for  the  payment  of  the  debt  as  aforesaid,  so  as 
aforesaid  due  from  him  the  said  R.  to  the  said  J.  P.  B.,  to  the 
great  damage  of  the  said  J.  P.  B.,  contrary,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

[n)  This  indictment  was  drawn  in  1847,  by  Mr.  David  Webster,  then  assistant 
of  the  attorney-general  of  Pennsylvania,  but  was  never  tried. 

"     480  ' 


SECRETING   GOODS,   ETC.  (516) 

(515)   Third  count.     Secreting^  assigning,  etc.,  with  intent  to  defraud 

two,  etc. 

That  the  said  R.  B.,  on,  etc.,  at,  etc.,  wickedly,  fraudulently, 
and  unlawfully  devising  and  intending  to  defraud  I.  C.  F.  and 
J.  P.  B.,  the  said  F.  and  B.  being  then  and  there  creditors  of 
him  the  said  R.  in  large  amounts,  to  wit,  in  the  sum  of  eight  thou- 
sand dollars,  of  their  respective  just  debts,  so  as  aforesaid  due 
from  the  said  R.  to  them  the  said  F.  and  B,,  did  then  and  there 
wilfully,  wickedly,  unlawfully,  and  corruptly  secrete,  assign, 
convey,  and  dispose  of  the  property,  goods,  wares,  and  merchan- 
dises, and  moneys  of  him  the  said  R.,  of  great  value,  to  wit,  of 
the  value  of  ten  thousand  dollars,  the  character,  quality,  quan- 
tity, description,  and  denomination  of  which  said  goods,  prop- 
erty, wares,  and  merchandises,  and  moneys  are  to  the  inquest 
unknown,  with  intent  to  defraud  the  said  I.  C.  F.  and  J.  P.  B., 
80  being  creditors  of  the  said  R.,  and  to  prevent  the  said  prop- 
erty, goods,  wares,  and  merchandises,  and  moneys  being  made 
liable  for  the  payment  of  the  debts  of  the  said  R.,  contrary,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(516)  Fourth  count.     Secreting,  etc.,  averring  creditors  to  be 

judgment  creditors. 

That  on,  etc.,  J.  S.,  J.  L.,  and  L.  IL,  trading  as  S.,  L.,  and  II., 
were  creditors  of  the  said  R.  B.  by  judgment,  which  said  judg- 
ment was  entered  in  favor  of  them  the  said  J.  S.,  J.  L.,  and  L. 
H.,  trading  as  aforesaid,  against  him  the  said  R.,  in  the  district 
court  for  the  city  and  county  of  Philadelphia,  at  the  Septem- 
ber term  of  the  said  court,  in  the  j'ear  one  thousand  eight  hun- 
dred and  forty -six,  being  numbered  two  hundred  and  fifty-seven 
of  the  said  term,  for  the  sum  of  seven  thousand  nine  hundred 
dollars,  and  was  founded  on  a  certain  bond  and  warrant  of  attor- 
ney thereto  annexed,  executed  by  the  said  R.  B.  in  favor  of  them 
the  said  J.  S.,  J.  L.,  and  L.  II.,  trading  as  S.,  L.,  and  H.,  dated 
the  twenty-fourth  day  of  October,  one  thousand  eight  hundred 
and  forty-six,  in  the  penal  sum  of  seven  thousand  nine  hundred 
dollars,  conditioned  for  the  payment  of  the  just  sum  of  three 
thousand  nine  hundred  and  fifty  dollars  on  demand,  with  lawful 
interest,  which  said  judgment  still  remains  on  the  records  of  the 

VOL.  I.— 31  481 


(517)  OFFENCES   AGAINST    PROPERTY. 

said  courts  unpaid  and  unsatisfied  ;  and  the  inquest,  etc.,  on 
their  oaths,  etc.,  do  further  present,  that  the  said  R.  B.,  on,  etc., 
at,  etc.,  wickedly,  fraudulently,  and  unlawfully  devising  and  in- 
tending to  defraud  the  said  J.  S.,  J.  L.,  and  L.  II.,  trading  as  S., 
L.,  and  IL,  the  said  J.  S.,  J.  L.,  and  L.  II.,  trading  as  S.,  L.,  and 
H.,  being  then  and  there  judgment  creditors  of  him  the  said  R. 
B.,  as  aforesaid  set  forth,  of  their  just  debt  and  judgment  so  as 
aforesaid  due  from  him  the  said  R.  to  them  the  said  S.,  L,,  and 
H.,  trading  as  aforesaid,  did  then  and  there  wilfully,  wickedly, 
unlawfully,  and  corruptly,  secrete  the  goods  and  chattels  in  the 
aforesaid  first,  second,  and  third  counts  mentioned  and  referred 
to,  being  then  and  there  the  property  of  the  said  R.,  with  intent 
to  defraud  the  said  J.  S.,  J.  L.,  and  L.  H.,  trading  as  aforesaid, 
being  as  aforesaid  the  judgment  creditors  of  him  the  said  R.  B., 
and  to  prevent  the  said  goods  and  chattels  being  made  liable  for 
the  payment  of  the  aforesaid  debt  and  judgment  so  as  aforesaid 
due  from  the  said  R.  to  the  said  J.  S.,  J.  L.,  and  L.  II.,  trading 
as  aforesaid,  to  the  great  damage  of  the  said  J.  S.,  J.  L.,  and 
L.  H.,  trading  as  aforesaid,  contrary,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(517)  Fifth  count.     Same  in  another  shape. 

That  the  said  R,  B.,  on,  etc.,  at,  etc.,  wickedly,  fraudulently, 
and  unlawfully  devising  and  intending  to  defraud  J.  S.,  J.  L., 
and  L.  II.,  trading  as  S.,  L.,  and  II.,  the  said  S.,  L.,  and  H., 
trading  as  aforesaid,  being  then  and  there  judgment  creditors  of 
the  said  R.,  to  wit,  by  a  judgment  entered  in  the  district  court 
for  the  said  city  and  county  wherein  they  the  said  J.  S.,  J.  L., 
and  L.  H.,  trading  as  aforesaid,  were  plaintifis,  and  the  said  R. 
was  defendant,  which  said  judgment  was  for  a  large  sum  of 
money,  to  wit,  seven  thousand  nine  hundred  dollars,  and  is  num- 
ber two  hundred  and  fifty-seven  on  the  docket  of  the  September 
term  of  the  said  court  for  the  year  one  thousand  eight  hundred 
and  forty-six,  of  their  just  debt  and  judgment  so  as  aforesaid 
due  from  him  the  said  R.  to  them  the  said  S.,  L.,  and  H.,  did 
then  and  there  wilfully,  wickedly,  unlawfully,  and  corruptly 
secrete,  assign,  convey,  and  dispose  of  the  property,  goods, 
wares,  and  merchandises,  and  moneys  of  him  the  said  R.,  of 
great  value,  to  wit,  of  the  value  of  ten  thousand  dollars,  the 
482 


SECRETING   GOODS,   ETC.  (^1^) 

character,  quality,  quantity,  description,  and  denomination  of 
which  said  goods,  propertj'',  wares,  and  merchandises,  and 
moneys  are  to  the  inquest  unknown,  with  intent  to  defraud  the 
said  J.  S.,  J.  L.,  and  L.  H.,  trading  as  aforesaid,  so  being  judg- 
ment creditors  of  him  the  said  R.,  and  to  prevent  the  said  prop- 
erty, goods,  wares,  and  merchandise,  and  wares  and  moneys 
being  made  liable  for  the  payment  of  the  debts  of  the  said  R,, 
and  of  the  aforesaid  judgment,  contrary,  etc.,  and  against,  etc. 
(^Conclude  as  in  hook  1,  chapter  3.) 

(518)  Fraudulent  conveyance  under  Stat.  Eliz.  ch.  5,  s.  3.(o) 

That  heretofore,  and  before,  etc.,  of  the  offence  hereinafter  next 
mentioned,  to  wit,  on  the  first  day  of  January,  in  the  year  of 
our  Lord  1850,  and  on  divers  other  days  and  times  heretofore, 
William  Smith,  hereinafter  mentioned,  had  committed  and 
caused  to  be  committed  near  to  and  in  the  neighborhood  of  cer- 
tain, to  wi't,  twenty-two,  messuages,  of  and  belonging  to  one  T. 
C.  M.,  to  wit,  at  West  Hill  Grove,  in  the  parish  of  Battersea,  in 
the  county  of  Surrey,  divers  nuisances  and  injurious  acts,  mat- 
ters, and  things,  to  the  great  damage  and  injury  of  the  said  T. 
C.  M.,  to  wit,  to  the  amount  of  £300  and  upwards.  Wherefore 
the  said  T.  C.  M.  heretofore,  to  wit,  on  the  twenty-seventh  day 
of  January,  in  the  year  of  our  Lord  1851,  did  commence  a  cer- 
tain action  on  the  case  against  the  said  W.  S.,  to  wit,  in  the 
court  of  our  lady  the  queen,  before  the  queen  herself,  whereby 
to  recover  from  the  said  W.  S.  the  lawful  damages  sustained  by 
the  said  T.  C.  M.  for  and  in  respect  of  the  said  nuisances  and 
injurious  acts,  matters,  and  things  aforesaid. 

That  thereupon  such  proceedings  were  had  and  taken  in  the 
said  action,  that  afterwards,  to  wit,  at  the  assizes  holden  at 
Kingston-on-Thames,  in  and  for  the  county  of  Surrey  aforesaid, 
the  said  action  came  on  to  be  tried,  and  then  and  there,  before 

(o)  This  indictment  was  sustained  in  R.  v.  Smith,  6  Cox  C.  C.  31.  It  has 
been  thought  right,  says  Mr.  Cox,  to  set  out  this  indictment  at  some  kmgth,  as 
it  is  the  only  form  of  the  kind  to  be  found  in  the  books.  It  was  drawn,  ai'ter 
much  consideration,  by  the  deputy  clerk  of  assize  on  the  home  circuit,  and  is 
believed  to  be  tlie  only  instance  in  which  an  attempt  has  been  made  to  render 
this  section  the  basis  of  a  criminal  prosecution — a  fact  somewhat  rt'markable, 
considering  the  extensive  nature  of  its  o])eration.  The  facts  of  tlie  case  are  suf- 
ficiently shown  by  the  indictment  itself.  On  this  topic  see  Steph.  Dig.  Cr. 
Art.  388  ;  Brett,  ex  parte,  L.  K.  1  Ch.  D.  151. 

483 


(518)  OFFENCES  AGAINST  PROPERTY. 

the  Right  Honorable  John  Lord  Campbell,  and  the  Right  Hon- 
orable Sir  James  Parke,  knight,  then  and  there  being  her  maj- 
esty's justices  assigned  to  take  the  assizes  in  and  for  the  said 
county,  was  by  a  certain  jury  of  the  country  in  due  form  of  law 
tried,  upon  which  said  trial  the  said  jury  did  find  and  say  upon 
their  oaths,  that  the  said  W.  S.  was  guilty  of  the  grievances, 
nuisances,  and  injurious  acts,  matters,  and  things  aforesaid  ;  and 
assessed  the  damages  of  the  said  T.  C.  M.  on  occasion  thereof, 
over  and  above  his  costs  and  charges  by  him  about  his  said  suit 
in  that  behalf  expended,  to  £300,  and  assessed  those  costs  and 
charges  at  forty  shillings. 

That  during  the  pendency  of  the  said  suit,  to  wit,  from  the 
commencement  of  the  said  suit  until  the  twenty -eighth  day  of 
March,  in  the  year  of  our  Lord  1851,  the  said  W.  S.  was  seized 
in  his  demesne  as  of  fee  of  and  in  certain  lands,  hereditaments, 
and  premises  within  the  said  county,  to  wit,  at  the  parish  of 
Battersea,  in  the  county  of  Surrey.* 

That  the  said  W.  S.,  late  of  the  parish  of  Wandsworth,  in  the 
county  aforesaid,  laborer,  and  S.  Everett,  late  of  the  same  place, 
laborer,  devising  and  wickedly  intending  and  contriving  to 
injure,  prejudice,  and  aggrieve  the  said  T.  C.  M.,  and  to  defraud 
and  deprive  him  of  any  damages  and  costs  to  be  recovered  in  the 
said  action,  whilst  the  same  was  so  pending  as  aforesaid,  and 
immediately  before  the  same  came  on  for  trial  as  aforesaid,  and 
in  anticipation  of  the  said  verdict,  to  wit,  on  the  day  and  year 
last  aforesaid,  at  the  parish  last  aforesaid,  in  the  county  aforesaid, 
did  devise,  contrive,  and  prepare,  and  caused  to  be  prepared,  a 
certain  feigned,  covinous,  and  fraudulent  alienation  and  convey- 
ance, whereby  the  said  W.  S.  expressed  and  declared  to  appoint 
and  grant  to  the  said  S.  E.  the  lands,  tenements,  and  heredita- 
ments aforesaid,  to  hold  to  him  the  said  S.  E.  and  his  heirs 
forever. 

That  the  said  W.  S.  and  S.  E.,  wickedly  and  fraudulently  devis- 
ing, contriving,  and  intending  as  aforesaid,  on  the  day  and  year 
aforesaid,  at  the  parish  aforesaid,  in  the  county  aforesaid,  unlaw- 
fully, knowingly,  wilfully,  fraudulently,  covinously,  and  injuri- 
ously did  execute  and  become  parties  to  the  said  alienation  and 
conveyance,  and  then  and  there  wittingly  and  wilfully  did  put 
in  ure,  avow,  maintain,  justify,  and  defend  the  same  alienation 
484 


SECRETING  GOODS,   ETC.  (518) 

and  conveyance,  as  true,  simple,  and  done  and  made  bond  fide 
and  upon  good  consideration,  and  as  a  conveyance  and  alienation 
whereby  the  said  W.  S.  had  really  and  bond  fide  appointed  and 
granted  to  the  said  S.  E.  the  lands,  tenements,  and  hereditaments 
aforesaid,  to  hold  to  him  the  said  S.  E.  and  his  heirs  forever. 
Whereas,  in  truth  and  in  fact,  the  said  alienation  and  convey- 
ance was  not  nor  is  it  bond  fide.  And  whereas  the  truth  was  and 
is,  that  the  same  was  so  devised,  contrived  and  executed  as  afore- 
said, of  malice,  fraud,  collusion,  and  guile,  and  to  the  end,  pur- 
pose, and  intent  to  delay  and  hinder  the  said  T.  C.  M.  of  and  in 
his  said  just  and  lawful  action  and  the  said  damages  b}''  reason 
of  the  premises ;  to  the  great  let  and  hinderance  of  the  due 
course  and  execution  of  law  and  justice,  to  the  great  injury  of 
the  said  T.  C.  M.,  against  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  of  our  said  lady  the 
queen,  her  crown  and  dignity. 

Second  count,  as  in  the  first  count  to  the  asterisk,  and  continued 

thus : 

That  the  said  W.  S.  and  S.  E.,  devising  and  wickedly  intend- 
ing and  contriving  to  injure,  prejudice,  and  aggrieve  the  said  T. 
C.  M.,and  to  defraud  and  deprive  him  of  any  damages  and  costs 
to  be  recovered  in  the  said  action  whilst  the  same  was  so  pend- 
ing as  aforesaid,  and  immediately  before  the  same  came  on  for 
trial  as  aforesaid,  and  in  anticipation  of  the  said  verdict,  to  wit, 
on  the  day  and  year  last  aforesaid,  at  the  parish  of  Wandsworth, 
in  the  county  aforesaid,  did  devise,  contrive,  and  prepare,  and 
cause  to  be  prepared,  a  fraudulent  alienation  and  conveyance  of 
the  lands,  tenements,  and  hereditaments  aforesaid.  That  the 
said  W.  S.  and  S.  E.,  wickedly  and  fraudulently  devising,  con- 
triving, and  intending  as  aforesaid,  on  the  day  and  year  afore- 
said, at  the  parish  last  aforesaid,  in  the  county  aforesaid,  unlaw- 
fully, knowingly,  wilfully,  fraudulently,  covinously,  and  inju- 
riously did  execute  and  become  parties  to  the  said  alienation  and 
conve3'ance,and  then  and  there  wittingly  and  willingly  did  put 
in  ure,  avow,  maintain,  justify,  and  defend  the  same  alienation 
and  conveyance,  as  true,  simple,  and  done  and  mado  bond  fide 
and  upon  good  consideration,  and  as  a  conveyance  and  aliena- 
tion, whereby  the  said  W.  S.  had  really  and  bond  fide  aliened  and 

485 


(518)  OFFENCES  AGAINST  PROPERTY. 

conveyed  to  the  said  S.  E.  the  lands,  tenements,  and  hereditaments 
aforesaid,  to  hold  to  him  the  said  S.  E.  and  his  heirs  forever ; 
whereas,  in  truth,  etc.  {as  in  first  count). 

Third  county  as  in  the  first  count  to  the  asterisk : 

That  during  the  pendency  of  said  action,  and  in  anticipation 
of  the  said  verdict,  to  wit,  on  the  day  and  year  last  aforesaid,  a 
certain  feigned,covinous,  and  fraudulent  alienation  and  convey- 
ance had  been  devised,  contrived,  prepared,  and  executed,  by  and 
between  the  said  W.  S.  and  the  said  S.  E.,  whereby  the  said  W. 
S.  was  expressed  and  declared  to  appoint  and  grant  and  make 
over  to  the  said  S.  E.,  the  lands,  tenements,  and  hereditaments 
aforesaid,  to  the  said  S.  E.  and  his  heirs  forever.  That  the  said 
"VY.  S.  and  S.  E.,  wickedly  devising,  contriving,  and  intending  to 
injure,  prejudice,  and  aggrieve  him,  and  to  deprive  him  of  the 
said  damages  and  costs  in  the  said  action  so  found  as  aforesaid, 
afterwards,  to  wit,  on  the  twenty-sixth  day  of  April,  in  the  year 
of  our  Lord  1851,  at  the  parish  of  Wandsworth,  in  the  county 
aforesaid,  unlawfully,  wittingly,  and  willingly  did  put  in  ure, 
avow,  maintain,  justify,  and  defend  the  same  alienation  and  con- 
veyance, as  true,  simple,  and  done  and  made  bond  fide  and  upon 
good  consideration,  and  as  a  conveyance  and  alienation,  whereby 
the  said  W.  S.  had  really  and  bond  fide  appointed,  granted,  and 
made  over  to  the  said  S.  E.  the  lands,  tenements,  and  heredita- 
ments aforesaid,  to  hold  to  him  the  said  S.  E.  and  his  heirs  for- 
ever; whereas,  in  truth  and  in  fact,  etc. 

Fourth  county  as  in  the  first  count  to  the  asterisk  : 

That  during  the  pending  of  the  said  action,  and  in  anticipa- 
tion of  the  said  verdict,  to  wit,  on  the  day  and  year  last  aforesaid, 
a  certain  feigned,  covinous,  and  fraudulent  alienation  and  con- 
veyance had  been  devised,  contrived,  prepared,  and  executed  by 
and  between  the  said  W.  S.  and  the  said  S.  E.,  of  the  lands, 
tenements,  and  hereditaments  aforesaid,  to  the  said  S.  E.  and  his 
heirs  forever.  That  the  said  "W.  S.  and  S.  E.,  wickedly  devising, 
contriving,  and  intending  to  injure,  prejudice,  and  aggrieve  the 
said  T.  C.  M.,and  defraud  and  deprive  him  of  the  said  damages 
and  costs  in  the  said  action  so  found  as  aforesaid,  afterwards,  to 
wit,  on  the  twenty-sixth  day  of  April,  in  the  year  of  our  Lord 
486 


SECRETING  GOODS,   ETC.  (518) 

1851,  at  the  parish  of  "Wandsworth  aforesaid,  in  the  county 
aforesaid,  unlawfully,  wittingly,  and  willingly  did  put  in  ure, 
avow,  maintain,  justify, and  defend  the  same  alienation  and  con- 
veyance, as  true,  simple,  and  done  and  made  bond  fide  and  upon 
good  consideration,  and  as  a  conveyance  and  alienation  whereby 
the  said  W.  S.  had  really  and  bond  fide  granted,  bargained, 
aliened,  released,  conveyed,  and  made  over  to  the  said  S.  E.  the 
lands,  tenements,  and  hereditaments  aforesaid,  to  hold  to  him 
the  said  S.  E.  and  his  heirs  forever,  etc. 

Fifth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  W.  S.  and  the  said  S.  E.,  and  divers  evil 
disposed  persons,  wickedly  intending  to  injure  the  said  T.  C.  M., 
on  the  twenty-eighth  day  of  March,  in  the  year  of  our  Lord 
1851,  with  force  and  arms,  at  the  parish  of  Wandsworth,  in  the 
county  aforesaid,  did  amongst  themselves  conspire,  combine, 
confederate,  and  agree  together,  fraudulently,  maliciously,  and 
covinously  to  delay,  hinder,  and  defraud  the  said  T.  C.  M.  of  all 
such  damages  which  he  might  thereafter  recover  against  the 
said  W.  S.  in  a  certain  action  which  was  then  pending  in  the 
court  of  our  said  lady  the  queen,  before  the  queen  herself, 
wherein  the  said  T.  C.  M.  was  plaintiff,  and  the  said  "W.  S.  ^vas 
defendant,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  against  the  peace  of  our  said  lady  the  queen,  her 
crown,  and  dignity. 

Sixth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  W.  S.  and  the  said  S.  E.,  and  divers  evil 
disposed  persons,  wickedly  intending  to  injure  the  said  T.  C.  M., 
on  the  twenty-eighth  day  of  March,  in  the  year  of  our  Lord 
1851,  with  force  and  arms,  at  the  parish  of  Wandsworth,  in  the 
county  aforesaid,  did  amongst  themselves  conspire,  combine, 
confederate,  and  agree  together,  fraudulently,  maliciously,  ajid 
covinously  to  delay,  hinder,  and  defraud  the  creditors  of  the 
said  W.  S.,  to  the  evil  example  of  all  others  in  the  like  case 
offending,  against  the  peace  of  our  lady  the  queen,  her  crown, 
and  dignity. 

487 


(518)  OFFENCES  AGAINST  PROPERTY. 


Seventh  count. 


And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  W.  S.  and  the  said  S.  E.,  and  divers  evil 
disposed  persons,  wickedly  intending  to  injure  the  said  T.  C.  M., 
on  the  twenty-eighth  day  of  March,  in  the  year  of  our  Lord 
1851,  with  force  and  arms,  at  the  parish  of  Wandsworth,  in  the 
county  aforesaid,  did  amongst  themselves  conspire,  comhine, 
confederate,  and  agree  together,  fraudulently,  maliciously,  and 
covinously  to  cheat  and  defraud  the  said  T.  C.  M.  of  the  fruits 
and  of  all  henefits  and  advantages  of  any  execution  or  executions 
which  he  might  thereafter  lawfully  issue  or  cause  to  be  issued 
against  the  lands  or  tenements  of  the  said  W.  S.,  to  the  evil 
example  of  all  others  in  the  like  case  offending,  against  the 
peace  of  our  lady  the  queen,  her  crown,  and  dignity. 

Eighth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  W.  S.  and  the  said  S.  E.,  and  divers  evil 
disposed  persons,  wickedly  intending  to  injure  the  said  T.  C.  M., 
on  the  twenty-eighth  day  of  March,  in  the  year  of  our  Lord 
1851,  with  force  and  arms,  at  the  parish  of  Wandsworth,  in  the 
county  aforesaid,  did  amongst  themselves  conspire,  combine, 
confederate,  and  agree  together,  fraudulently,  maliciously,  and 
covinously  to  cheat,  injure,  impoverish,  prejudice,  and  defraud 
the  said  T.  C.  M.,  to  the  evil  example  of  all  others  in  the  like 
case  offending,  etc. 

Ninth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  heretofore,  and  before  and  at  the  time  of  the  com- 
mission of  the  offence  hereinafter  next  mentioned,  to  wit,  on  the 
twenty-eighth  day  of  March,  in  the  year  of  our  Lord  1851,  a 
certain  action  on  the  case  was  pending  between  the  said  W.  S. 
and  the  said  T.  C.  M.,  to  wit,  in  her  majesty's  court  of  queen's 
bench,  at  Westminster,  whereby  the  said  T.  C.  M.  sought  to 
recover  from  the  said  W.  S.  damages  for  certain  nuisances  and 
injurious  acts,  matters,  and  things  alleged  to  have  been  done 
and  committed  to  the  injury  of  the  said  T.  C.  M.  That  the 
488 


SECRETING   GOODS,    ETC.  (518) 

said  W.  S.  and  S.  E.,  and  divers  evil  disposed  persons,  whilst 
the  said  action  was  so  pending  as  aforesaid,  to  wit,  on  the  day 
and  year  aforesaid,  at  the  parish  last  aforesaid,  in  the  county 
aforesaid,  unlawfully  and  wickedly  did  conspire,  combine,  con- 
federate, and  agree  together,  by  divers  unlawful,  false,  fraud- 
ulent, and  indirect  ways,  means,  devices,  stratagems,  and  con- 
trivances, to  impede,  hinder,  prevent,  and  delay  the  said  T.  C. 
M.  in  the  said  action,  and  in  the  prosecution  thereof,  and  in  the 
recovery  of  damages  for  the  nuisances  and  injurious  acts,  mat- 
ters, and  things  aforesaid,  to  the  great  injury  of  the  said  T.  C. 
M.,  against  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  of  our  said  lady  the  queen,  her 
crown,  and  dignity. (/;) 

(p)  After  conviction,  Locke  (for  the  defence)  moved  in  arrest  of  judgment, 
on  the  ground  that  no  proceeding  by  indictment  was  contemi)hitcd  by  the  statute. 
The  third  section  was  in  these  words  :  "That  all  and  every  the  parties  to  such 
feigned,  covinous,  or  fraudulent  feoffment,  gift,  grant,  alienation,  bargain,  con- 
veyance, bonds,  suits,  judgments,  executions,  and  other  things  before  expressed, 
and  being  privy  and  knowing  of  the  same,  or  any  of  them,  which,  at  any  time 
after  the  tenth  day  of  June,  next  coming,  shall  wittingly  and  willingly  put  in 
ure,  avow,  maintain,  justify,  or  defend  the  same,  or  any  of  them,  as  true,  simple, 
and  done,  had,  or  made  bona  Jide,  and  upon  good  consideration,  or  shall  aliene 
or  assign  any  the  lands,  tenements,  goods,  leases,  or  other  things  before  men- 
tioned, to  him  or  them  conveyed  as  is  aforesaid,  or  any  part  tliereof,  shall  incur 
the  penalty  or  forfeiture  of  one  year's  value  of  the  said  lands,  tenements,  and 
hereditaments,  leases,  rents,  commons,  or  other  profits,  of  or  out  of  the  same, 
and  the  whole  value  of  the  said  goods  and  chattels,  and  also  of  so  much  moneys 
as  are  or  shall  be  contained  in  any  such  covinous  or  feigned  bond  ;  the  one  moiety 
■whereof  to  be  to  the  queen's  majesty,  her  heirs,  and  successors,  and  the  other 
moiety  to  the  party  or  parties  aggrieved  by  such  feigned  and  fraudulent  feoffment, 
gift,  grant,  alienation,  bargain,  conveyance,  bonds,  suits,  judgments,  executions, 
leases,  rents,  commons,  profits,  charges,  and  other  things  aforesaid,  to  be  recov- 
ered in  any  of  the  queen's  courts  of  record,  by  action  of  debt,  bill,  plaint,  or 
information,  wherein  no  essoign,  protection,  or  wager  of  law  shall  be  admitted  to 
the  defendant  or  defendants,  and  also,  being  thereof  lawfully  convicted,  shall 
suffer  imprisonment  for  one  half  year,  without  bail  or  mainj)rize."  The  offence, 
if  any,  of  which  the  defendants  have  been  guilty,  is  entirely  created  by  this 
statute,  and  the  section,  after  stating  what  the  offence  is,  declares  that  for  com- 
mitting it  the  offender  shall  incur  a  penalty  or  forfeiture  of  one  year's  value,  to 
be  recovered  by  action.  There  is  no  mention  whatever  of  indictment,  but  there 
is  a  reference  to  a  civil  proceeding.  The  rule  with  respect  to  the  mode  of  pro- 
ceeding where  new  offences  are  created  by  statute  is  laid  down  in  Russell  on 
Crimes,  p.  50,  in  the  following  terms  :  "  Where  an  offence  was  punishable  by  a 
common  law  proceeding  before  the  passing  of  a  statute  whicii  prescribes  a  par- 
ticular remedy  by  a  summary  proceeding,  then  either  method  may  be  pursued,  as 
the  particular  remedy  is  cumulative,  and  does  not  exclude  tlie  conuuon  law  pun- 
ishment. But  where  a  statute  creates  a  new  olfenee  by  prohibiling  and  making 
unlawful  what  was  lawful  before,  and  appoints  a  particular  remedy  against  such 
new  offence,  by  a  particular  sanction  and  j)articular  metliod  of  proceetling,  such 
method  must  be  pursued,  and  no  other.     The  mention  of  other  methods  of  pro- 

489 


(519)  OFFENCES    AGAINST    PROPERTY. 


IV.  FRAUDULENT  INSOLVENCY  IN  PENNSYLVANIA. 

(519)  General  form. 

(520)  Averring  collusion  with  another  person. 

(521)  Same,  but  averring  collusion  with  another  person. 

(522)  Same,  specifying  another  assignee. 

(523)  Fraudulent  insolvency  by  a  tax  collector.     First  count.     Embezzling 

creditor's  property. 

(524)  Second  count.     Applying  to  his  own  use  trust  money,  etc. 

(519)  General  form. 

That  T.  W.  D.,  etc.,  on,  etc.,  at,  etc.,  made  and  presented  to 
the  honorable  the  judges  of  the  court  of  common  pleas  of  the 

ceeding  impliedly  excludes  that  by  indictment,  unless  such  methods  are  given 
by  a  sejiarate  and  substantive  clause."  There  is  another  objection  to  this  indict- 
ment, that  it  only  states  generally  that  tliis  deed  was  fraudulent,  not  stating  why 
or  in  what  respect  it  was  so.  In  re  Peck,  9  Adolphus  &  Ellis,  686,  it  was  held, 
tliat  a  count  cliarging  that  the  defendants  unlawfully  conspired  to  defraud  divers 
persons  who  should  bargain  with  them  for  the  sale  of  merchandise,  of  great 
quantities  of  such  merchandise,  without  paying  for  the  same,  with  intent  to  obtain 
to  themselves  money  and  other  profit,  was  bad  for  not  showing  by  what  means 
the  parties  were  to  be  defrauded. 

James  (with  whom  was  Hawkins),  for  the  prosecution,  was  not  called  upon. 

jMaule,  J.  "As  to  the  first  point,  that  the  section  of  the  act  of  parliament  does 
not  speak  of  indictment,  I  think  it  clear  that  that  proceeding  is  the  proper  one. 
The  section  mentions  the  offence,  and  then,  with  reference  to  the  punishment, 
declares  that  the  '  oflTender,  being  thereof  convicted,  shall  suffer  imprisonment 
for  one  half  year.'  That  must  mean,  '  being  convicted  thereof'  before  some  com- 
petent tribunal.  If  the  statute  had  pointed  out  some  other  means — for  instance, 
on  conviction  before  a  justice  of  the  peace,  on  a  summary  hearing — it  would  pro- 
bably have  restricted  i:)roceedings  to  that  particular  course.  It  is  true  that  the 
statute  does  mention  a  civil  action,  but  that  has  nothing  whatever  to  do  with  the 
half  year's  imprisonment,  but  merely  has  reference  to  the  recovery  of  damages 
by  action,  in  any  of  the  courts  at  Westminster.  It  surely  could  never  be  con- 
tended that  tlie  meaning  of  the  statute  is,  that,  when  such  a  court  has  given  judg- 
ment for  the  damages,  it  should  proceed  to  award  to  the  defendant  the  punish- 
ment of  imprisonment  for  half  a  year.  The  humanity  of  our  law  has  established 
a  clear  distinction  between  civil  and  criminal  proceedings,  and  this  act  of  parlia- 
ment cannot  be  supposed  to  sanction  so  anomalous  a  course  as  that.  It  is  obvious 
that,  by  some  means  or  another,  imprisonment  is  to  be  awarded  after  a  proper 
conviction  before  a  recognized  tribunal.  How,  then,  can  that  be  done  otherwise 
than  by  indictment?" 

Locke  submitted,  that,  at  all  events,  it  was  intended  that  no  criminal  proceed- 
ing should  be  resorted  to  until  after  the  recovery  of  damages  in  a  civil  action  ; 
the  words  "and  also,"  near  the  end  of  the  section,  seemed  to  point  to  such  a 
construction. 

Maule,  J.  "I  do  not  think  so;  those  words  do  not  necessarily  So  restrict  the 
procedure,  and  there  seems  to  be  no  reason  why  it  should  be  so  restricted.  Then, 
as  to  the  second  point,  the  case  cited  is  one  where  persons  were  said  to  have 
conspired  to  do  a  thing  not  necessarily  unlawful  in  itself — such  as,  for  instance, 
preventing  a  person  from  having  execution  of  a  judgment.  There  is  nothing 
unlawful  in  that.     It  is  precisely  what  the  learned  counsel,  and  those  who  in- 

490 


FRAUDULENT   INSOLVENCY,   ETC.  (519) 

county  of  Philadelphia,  his  petition  in  writing  praying  for  the 
benefit  of  the  insolvent  laws  of  this  commonwealth,  according 
to  the  form,  force,  and  effect  of  the  said  insolvent  laws,*  and 
the  said  T.  W.  D.  so  petitioning  as  aforesaid,  and  being  then  and 
there  indebted  to  a  certain  B.  L.,  of  the  said  county,  yeoman, 
and  also  to  divers  others,  whose  names  are  to  the  jurors  afore- 
said unknown,  in  divers  large  sums  of  money,  the  said  court  on 
the  said  petition,  so  presented  as  aforesaid,  did  then  and  there 
appoint  the  eleventh  day  of  January,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  thirty-nine,  for  the  purpose  of 
hearing  the  said  T.  W.  D.  and  his  creditors,  at  the  county  court- 
house in  the  citj'  of  Philadelphia,  on  which  said  last  mentioned 
day,  and  at  the  court-house  aforesaid,  and  on  the  several  days 
and  times  thereafter  to  which  the  said  case  was  duly  adjourned, 
to  wit,  at  the  county  aforesaid,  the  said  court  did  meet  and  sit, 
for  the  purpose  aforesaid  [and  it  appearing  to  the  said  court  on 
the  said  hearings  that  there  was  just  ground  to  believe  that  the 
said  T.  W.  D.  had  concealed  part  of  his  estate  and  effects,  and 
colluded  and  contrived  with  divers  persons  for  such  concealment, 
and  conveyed  the  same  to  divers  persons  for  the  use  of  himself 
and  his  family  and  friends,  with  the  expectation  of  receiving 
some  future  benefit  to  himself  and  them,  with  intent  to  defraud 
his  creditors,  the  said  court  on  the  said  {stating  ^me)did  commit 
the  said  T.  W.  D.  to  the  jail  of  the  said  county,  for  trial  at  this 
court.]  And  the  inquest  aforesaid  do  further  present,  that  the 
said  T.  W.  D.,  fraudulently  and  wickedly  contriving  and  intend- 
ing to  cheat  and  defraud  the  said  B.  L.  and  others,  his  creditors 
as  aforesaid,  to  wit,  on  the  day  and  year  first  aforesaid,  at  the 
city  and  county  aforesaid,  did  collude  and  contrive  with  a  certain 
J.  B.  D.  and  a  certain  C.  W.  D.  for  the  concealment  of  a  part  of 
his  the  said  T.  W.  D.'s  estate  and  effects,  to  wit,  merchandise, 
consisting  of  groceries,f  viz.,  one  hundred  chests  of  tea;  dry 
goods,  viz.,  five  thousand  yards  of  domestic  goods ;  hardware, 
and  other  articles  to  the  jurors  aforesaid  unknown,  of  great  value, 
to  wit,  of  the  value  of  one  hundred  thousand  dollars,  thereby 

struct  him,  are  doing  at  this  moment,  seeking  to  prevent  the  operation  of  a  judg- 
ment by  arr(?sting  it.  In  the  present  ease,  the  very  words  of  tlie  statute  are 
adopted.  What  is  charged,  therefore,  is  necessarily  unhiwl'ul,  for  the  statute  has 
made  it  so."     Judgment  for  the  crown. 

491 


(520)  OFFENCES    AGAINST   PROPERTY. 

expecting  a  future  benefit  to  himself,  with  intent  to  defraud  the 
said  B.  L.  and  others,  his  creditors,  to  the  evil  example  of  all 
others  in  like  cases  oiFending,  contrary,  etc.,  and  against,  etc. 
{Conclude  as  in  hook  1,  chapter  3.) 

Second  count.     Same  as  first  down  to  *,  and  then  ^proceed: 

And  the  said  T.  "W.  D.  was  then  and  there  indebted  to  B.  L., 
J.  R.,  and  B.  M.,  of  the  said  city  and  county,  yeoman,  and  also 
to  divers  others,  whose  names  are  to  the  jurors  aforesaid  un- 
known, in  divers  large  sums  of  money,  and  that  the  said  T.  W. 
D.,  80  petitioning  as  aforesaid  (with  the  result  aforesaid),  did, 
with  intent  to  defraud  his  creditors  aforesaid,  convey  to  a  certain 
J.  B.  D.  and  C.  W.  D.,  for  the  use  of  himself,  the  said  T.  W.  D., 
thereby  expecting  a  future  benefit  to  himself,  part  of  his  estate 
and  effects,  to  wit,  merchandise,  consisting  of  groceries,  etc. 
{Conclude  as  in  first  count  from  f.) 

(520)  Third  count.     Same  as  firsts  hut  averring  collusion  with 
another  person. 

Fourth  count. 

That  the  said  T.  W.  B.,  on,  etc.,  at,  etc.,  made  and  presented 
to  the  honorable  the  judges  of  the  court  of  common  pleas  of 
the  county  of  Philadelphia  his  petition  in  writing,  praying  for 
the  benefit  of  the  insolvent  laws  of  the  commonwealth  of  Penn- 
sylvania, and  that  the  same  T.  W.  B.,so  petitioning  as  aforesaid 
(with  the  result  aforesaid),  on  the  day  and  year  first  aforesaid, 
at  the  city  and  county  aforesaid,  did  fraudulently*  convey  to  a 
certain  T.  W.  B.,  Jr.,  part  of  the  estate,  effects,  and  credits  of 
said  T.  W.  B.,  to  wit,  merchandise,  consisting  of  groceries,  viz., 
one  hundred  chests  of  tea ;  dry  goods,  viz.,  five  thousand  yards 
of  cotton  goods ;  hardware,  and  other  articles  to  the  jurors  afore- 
said unknown,  of  great  value,  to  wit,  of  the  value  of  twenty 
thousand  dollars,  with  the  expectation  of  receiving  future  benefit 
to  himself,  and  with  intent  to  defraud  his  creditors  and  for  the 
use  of  himself,  to  the  evil  example,  etc. 
492 


FRAUDULENT   INSOLVENCY,   ETC.  (523) 

(521)  Fifth  and  sixth  counts.     Same  as  first,  but  averring  collusion 
with  another  person. 

(522)   Seventh  count.     Same  as  second,  hut  s'pecifying  another 

assignee. 

Eighth  count.     Same  as  fourth  to  *,  and  then  proceed: 

conceal  part  of  liis  estate,  effects,  and  credits,  to  wit,  merchan- 
dise, consisting  of  groceries,  one  hundred  chests  of  tea;  dry 
goods,  viz.,  live  thousand  yards  of  cotton  domestic  goods;  and 
other  articles  to  the  jurors  aforesaid  unknown,  of  great  value, 
to  wit,  of  the  value  of  fifty  thousand  dollars,  with  the  expecta- 
tion of  receiving  future  benefit  to  himself,  and  with  intent  to 
defraud  his  creditors,  and  for  the  use  of  himself,  to  the  evil 
example,  etc.(^) 

(523)  Fraudulent  insolvency  hy  a  tax  collector.     First  count, 
embezzling  credito7^^s  property. 

That  E.  ]!T.  F.,  etc.,  on,  etc.,  at,  etc.,  made  and  presented  to 
the  honorable  the  judges  of  the  court  of  common  pleas  of  the 
county  of  Philadelphia  his  petition  in  writing,  praying  for  the 
benefit  of  the  insolvent  laws  of  this  commonwealth,  according 
to  the  form,  force,  and  effect  of  the  said  insolvent  laws,  and  the 
said  E.  ]Sr.  F.,  so  petitioning  as  aforesaid,  being  then  and  there 
indebted  to  the  county  of  Philadelphia  in  a  large  sum  of  money, 
to  wit,  in  the  sum  of  ten  thousand  dollars,  being  the  same  sum 
of  money  embezzled  as  hereinafter  mentioned,  and  also  to  divers 
others,  whose  names  are  to  the  jurors  aforesaid  unknown,  in 
divers  large  sums  of  money  to  the  jurors  aforesaid  unknown,  the 
said  court,  on  the  said  petition  so  presented  as  aforesaid,  did  then 
and  there  appoint  the  third  day  of  November,  one  thousand  eight 
hundred  and  forty-seven,  for  the  purpose  of  hearing  the  said  E. 
N.  F.  and  his  creditors,  at  the  county  court-house,  in  the  city 
of  Philadelphia,  on  which  said  last  mentioned  day,  and  at  the 

[q)  This  is  the  indictment  in  Dyott's  case,  on  which  the  defendant  was  con- 
victed and  sentenced,  and  the  judgment  sustained  in  the  supreme  court  of  Penn- 
sylvania. Com.  V.  Dyott,  5  VVhart.  G7.  The  aUegations  in  brackets  in  tlie  first 
count  are  not  in  the  original  form,  but  are  here  introduced  in  consetjuence  of  a 
judgment  of  the  court  of  quarter  sessions  in  Philadelphia,  in  Com.  v.  McCabe, 
June  7,  1854,  in  which  they  were  lield  necessary. 

493 


(524)  OFFENCES   AGAINST    PROPERTY. 

court-house  aforesaid,  and  on  the  several  days  and  times  there- 
after to  which  the  said  case  was  duly  adjourned,  to  wit,  at  the 
county  aforesaid,  the  said  court  did  meet  and  sit,  for  the  purpose 
aforesaid.  [And  it  appearing  to  the  same  court  on  tbe  said  hear- 
ings that  there  was  just  ground  to  believe  that  the  said  E. !N".  F. 
had  concealed  part  of  his  estate  and  effects,  and  colluaed  and 
contrived  with  divers  persons  for  such  concealment,  and  cou- 
vej^ed  the  same  to  divers  persons  for  the  use  of  himself  and  his 
family  and  friends,  with  the  expectation  of  receiving  some  future 
benefit  to  himself  and  others,  and  with  intent  to  defraud  his 
creditors,  the  said  court  on  the  said  {stating  time)d\(\.  commit  the 
said  E.  N.  F.  to  the  jail  of  the  said  county,  for  trial  at  the  court.] 
And  the  inquest  aforesaid,  on  their  oaths  and  affirmations  afore- 
said, do  further  present,  that  theretofore,  to  wit,  on  the  day  and 
year  first  aforesaid,  at  the  county  and  within  the  jurisdiction 
aforesaid,  he  the  said  E.  N.  F.*  being  then  and  there  the  agent 
of  the  said  county  of  Philadelphia,  unlawfully  embezzled  divers 
large  sums  of  money,  to  wit,  ten  thousand  dollars,  the  property 
of  said  county,  with  which  said  sums  of  money  he  had  been 
intrusted  as  agent  aforesaid,  by  the  said  county  of  Philadelphia, 
to  the  prejudice  of  the  said  county  of  Philadelphia,  the  said 
county  being  then  and  there  a  creditor  of  him  the  said  E.,  and 
opposing  his  petition  aforesaid,  as  well  as  of  the  other  opposing 
creditors  of  said  E.,  with  intent  to  defraud  the  said  county  of 
Philadelphia,  contrary,  etc.     (^Conclude  as  in  book  1, chapter  3.) 

(524)  Second  count.     Ajypbjing  to  his  oum  use  trust  money ^  etc. 
Same  as  in  first  count  to  *,  and  then  proceed: 

being  then  and  there  the  agent  of  the  county  of  Philadelphia, 
and  intrusted  as  such  with  divers  large  sums  of  money,  to  wit, 
ten  thousand  dollars,  the  property  of  said  county,  unlawfully 
applied  to  his  own  use  the  said  money,  to  the  prejudice  of  the 
said  county  of  Philadelphia,  the  said  county  being  an  opposing 
creditor  of  him  the  said  E.,  at  the  hearing  aforesaid,  as  well  as 
of  the  other  opposing  creditors  of  the  said  E.,  with  intent  to 
defraud  the  said  county,  contrary,  etc.,  and  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 
494 


FRAUDULENT   INSOLVENCY,   ETC.  (524) 

Third  count     Same,  differently  stated.     As  in  first  count  to  *,  and 

'proceed : 

being  then  and  there  the  agent  of  the  county  of  Philadelphia, 
unlawfully  embezzled  and  applied  to  his  own  use  divers  large 
sums  of  money,  to  wit,  ten  thousand  dollars,  the  property  of  said 
county,  with  which  said  money  he  had  been  intrusted  as  agent 
aforesaid,  by  the  said  county  of  Philadelphia,  to  the  prejudice 
of  the  said  county,  the  said  county  being  creditor  of  the  said  E., 
opposing  his  petition  as  aforesaid,  as  well  as  of  the  other  oppos- 
ing creditors  of  the  said  E.,  with  intent  to  defraud  the  said 
county,  contrary,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

Fourth  count.     Embezzlement,  etc.  ;  the  appointment  as  collector 
being  more  fully  set  forth. 

That  the  said  E.  'N.  F.,  on,  etc.,  at,  etc.,  was  duly  constituted 
and  appointed  collector  of  taxes  for  the  county  of  Philadelphia, 
in  South  Ward  in  the  city  of  Philadelphia,  and  being  so  con- 
stituted and  appointed,  he  the  said  E.  then  and  there  exercised 
the  said  office  of  collector  of  taxes,  and  was  intrusted  with  and 
collected  divers  large  sums  of  money  in  his  capacity  as  collector 
and  agent  as  aforesaid  for  the  said  county,  said  money  belonging 
to  said  county.  And  the  inquest  aforesaid,  on  their  oaths  and 
affirmations  aforesaid,  do  further  present,  that  afterwards,  to  wit, 
on  the  day  and  year  first  aforesaid,  at  the  county  and  within  the 
jurisdiction  aforesaid,  he,  etc.,  made  and  presented  to  the  said 
judges  of  the  court  of  common  pleas  his  petition  in  writing  (the 
effect  of  which  in  the  first  count  of  this  indictment  is  more  partic- 
ularly set  forth),  he  the  said  E.  being  then  and  there  indebted  to 
the  said  county  of  Philadelphia,  in  the  sum  of  money  embezzled 
as  hereinafter  mentioned,  and  also  to  divers  others,  Avhose  names 
are  to  this  inquest  unknown  ;  whereupon  the  said  court  took 
such  action  on  said  petition,  and  such  proceedings  were  thereon 
had  therein  as  in  the  first  count  of  this  indictment  is  described. 
And  the  inquest  aforesaid,  upon  their  oaths  and  affirmations 
aforesaid,  do  further  present,  that  afterwards,  to  wit,  on  the  day 
and  year  first  aforesaid,  at  the  county  and  within  the  jurisdiction 
aforesaid,  the  said  E.  IST.  F.,  being  such  collector  of  taxes  and 
agent  as  aforesaid  for  the  said  county  of  Philadelphia,*  unlaw- 

4^5 


(524)  OFFENCES  AGAINST  PROPERTY. 

fully  embezzled  divers  large  sums  of  money,  to  wit,  ten  thousand 
dollars,  being  part  of  the  said  money  which  he  had  collected  as 
collector  of  taxes  and  agent  as  aforesaid  for  the  county  of  Phil- 
adelphia, said  money  being  the  property  of  the  said  county,  to 
the  prejudice  of  the  said  county,  the  said  county  being  an  oppos- 
ing creditor  of  the  said  E.  at  the  hearing  aforesaid,  as  well  as  of 
the  other  opposing  creditors  of  said  E.,  with  intent  to  defraud 
the  said  county,  contrary,  etc.     {Conclude  as  in  book  1,  chajjtei^S.) 

Sixth  count.     State  the  office,  etc.,  as  in  fifth  count  to^,  and  i^oceed: 

unlawfully  ap})lied  to  his  own  use  divers  large  sums  of  money, 
to  wit,  ten  thousand  dollars,  being  the  said  money  with  which  he 
had  been  intrusted  as  collector  aforesaid,  and  agent  for  the  said 
county  of  Philadelphia,  said  money  being  the  property  of  the 
said  county,  to  the  prejudice  of  the  said  county,  the  said  county 
being  an  opposing  creditor  of  the  said  E.  at  the  hearing  afore- 
said, as  well  as  of  other  opposing  creditors  of  said  E.,  with  in- 
tent to  defraud  the  said  county,  contrary,  etc.  {Conclmle  as  in 
book  1,  chapter'  3.) 

Seventh  count.  Same  as  sixth,  introducing  the  averment  that  the 
money  embezzled  was  jpart  of  the  money  which  had  been  intrusted 
to  the  collector. 

Eighth  count.     Colluding,  etc.     Same  as  first  count  to*,  and  then 

•proceed : 

And  the  said  E.  ]^.  F.,  fraudulently  and  wickedly  contriving 
and  intending  to  cheat  and  defi'aud  the  said  county  of  Philadel- 
phia, and  others,  his  creditors  aforesaid,  to  wit,  on  the  day  and 
year  first  aforesaid,  at  the  city  and  county  aforesaid,  did  collude 
and  contrive  with  certain  persons  whose  names  are  to  this  inquest 
as  yet  unknown,  for  the  concealment  of  a  part  of  his  estate  and 
eiiects,  to  wit,  money  of  the  value  of  ten  thousand  dollars,  there- 
by expecting  further  benefit  to  himself,  with  intent  to  defraud 
the  said  county  of  Philadelphia,  and  others,  his  creditors,  to  the 
evil  example  of  all  others  in  like  manner  offending,  contrary, 
etc.  {Conclude  as  in  book  1,  chapter  3.) 
496 


VIOLATION   OF   FACTOR   LAW.  (526) 

V.  VIOLATION  OF  FACTOR  LAW. 

(525)  Pledging  goods  consigned,  and  applying  the  proceeds  to  defendant's 

use,  under  the  Pennsylvania  statute. 

(526)  Second  count.     Selling  same,  and  applying  to  defendant's  use 

the  proceeds. 

(527)  Third  count.     Selling  same  for  negotiable  instrument. 

(525)  First  count.     Pledging  goods  consigned^  and  applying  the 
proceeds  to  defendant's  use,  under  the  Pennsylvania  statute. 

That  J.  Q.  A.,  etc.,  and  D.  S.  H.,  on,  etc.,  at,  etc.,  then  and 
there  being  the  factors  and  consignees  of  a  certain  C.  D.,  with 
force  and  arms,  etc.,  did  then  and  there  receive  as  a  consignment 
for  sale  from  the  said  C.  D.  certain  goods  and  merchandise,  to 
wit  {stating  the  goods  with  the  same  jmiiicularity  as  in  larceny), 
together  with  other  goods  and  merchandise  of  the  goods  and 
property  of  the  said  C.  D.,  in  all  of  great  value,  to  wit,  of  the 
value  of  one  thousand  four  hundred  and  two  dollars,  and  that 
the  said  J.  Q.  A.  and  D.  S.  H.,  so  being  such  consignees  and 
factors  as  aforesaid,  on  the  day  and  year  as  aforesaid,  at  the 
county  aforesaid,  and  within  the  jurisdiction  aforesaid,  with 
force  and  arms,  etc.,  in  violation  of  good  faith  and  with  intent  to 
defraud  the  said  C.  D.,  did  then  and  there  deposit  and  pledge 
with  one  J.  B.(r)  said  merchandise,  so  consigned  to  them  as 
aforesaid,  as  a  security  for  certain  money,  to  wit,  the  sum  of  one 
thousand  four  hundred  and  two  dollars,  which  they  the  said  J. 
Q.  A.  and  D.  S.  H.  had  before  that  time  borrowed  from  the  said 
J.  B.,  and  did  then  and  there  apply  and  dispose  of  to  their  own 
use  the  said  money,  to  the  great  damage  of  the  said  C.  D.,  to 
the  evil  example  of  all  others  in  the  like  case  offending,  con- 
trary, etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(526)  Second  count.     Selling  same,  and  applying  to  defeiidant's  use 

the  proceeds. 

That  the  said  J.  Q.  A.  and  D.  S.  II.,  on,  etc.,  then  and  there 
being  the  consignees  and  factors  of  the  said  C.  D.,  with  force 
and  arms,  etc.,  did  then  and  there  receive  from  the  said  C.  D.,a3 
a  consignment  for  sale,  certain  other  goods  and  merchandise,  to 

(r)  If  the  party  from  whom  the  money  was  borrowed,  and  to  whom  the  pro- 
perty was  pledged,  be  unknown,  it  can  be  averred  so. 
VOL.  I.— 32  497 


(527)  OFFENCES  AGAINST  PROPERTY. 

wit,  etc.,  of  the  goods  and  property  of  the  said  C.  D.,  and  that 
the  said  J.  Q.  A.  and  D.  S.  H.,  so  being  such  consignees  and 
factors  as  last  aforesaid,  on  the  day  and  year  last  aforesaid,  at 
the  county  aforesaid,  and  within  the  jurisdiction  of  this  court, 
with  force  and  arms,  etc.,  in  violation  of  good  faith,  and  with 
intent  to  defraud  the  said  C.  D.,  did  then  and  there  sell  the  last 
mentioned  g-oods  and  merchandise  to  one  B.  C,  at  and  for  the 
sum  of  one  thousand  four  hundred  and  two  dollars,  and  apply 
and  dispose  of  to  their  own  use,  the  said  sum  of  one  thousand 
four  hundred  and  two  dollars  so  received,  to  the  great  damage 
of  the  said  C.  D.,  to  the  evil  example  of  all  others  in  like  case 
offending,  contrary,  etc.,  and  against,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(527)  Third  count.     Selling  same  for  negotiable  instrument. 

That  the  said  J.  Q.  A.  and  D.  S.  H.,  on,  etc.,  then  and  there 
beins:  the  consisfnees  and  factors  of  the  said  C.  D.,  with  force 
and  arms,  etc.,  did  then  and  there  receive  from  the  said  C.  D.,  as 
a  consignment  for  sale,  certain  other  goods  and  merchandise,  to 
wit,  of  the  goods  and  property  of  the  said  C.  D.,*  and  that  the 
said  J.  Q.  A.  and  D.  S.  H.,  so  being  such  consignees  and  fac- 
tors as  last  aforesaid,  on  the  day  and  year  last  aforesaid,  at  the 
county  aforesaid,  with  force  and  arms,  etc.,  in  violation  of  good 
faith,  and  with  intent  to  defraud  the  said  C.  D.,  did  sell  the  said 
last  mentioned  goods  and  merchandise  to  one  A.  B.,  at  and  for 
the  price  and  sum  of  one  thousand  four  hundred  and,two  dollars, 
and  received  therefor  as  such  consignees  the  negotiable  instru- 
ments of  the  purchasers  of  said  last  mentioned  goods  and  mer- 
chandise, whose  names  are  as  yet  unknown  to  the  inquest  afore- 
said, and  with  force  and  arms,  etc.,  and  in  violation  of  good  faith, 
and  with  intent  to  defraud  the  said  C.  D.,  did  then  and  there 
apply  and  dispose  of  to  their  own  use  the  said  negotiable  instru- 
ments raised  and  acquired  by  the  sale  of  the  said  last  mentioned 
goods  and  merchandise  of  the  said  C.  D.,  to  the  evil  example 
of  others  in  like  case  oifending,  contrary,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 
498 


VIOLATION   OF   FACTOR   LAW.  (527) 

Fourth  count.   Same  as  third  to  *,  and  proceed  : 

and  did  then  and  there  undertake  and  faithfully  promise  the  said 
C.  D.  to  sell  the  said  last  mentioned  goods  and  merchandise  for 
and  on  account  of  him  the  said  C.  D.,  and  to  render  him  a  just 
and  true  account  of  said  last  named  sale,  and  well  and  truly  to 
pay  to  the  said  C.  D.  the  proceeds  thereof  according  to  their 
duty  as  such  consignees  and  factors  as  last  aforesaid,  but  that 
the  said  J.  Q.  A.  and  D.  S.  H.,  so  being  such  consignees  and 
factors  as  last  aforesaid,  on  the  day  and  year  last  aforesaid,  at 
the  county  aforesaid,  with  force  and  arms,  etc.,  in  violation  of 
good  faith  and  with  intent  to  defraud  the  said  C.  D.,  did  then 
and  there  sell  to  one  A.  B.  the  last  named  goods  and  merchan- 
dise at  and  for  the  price  and  sum  of  one  thousand  four  hundred 
and  two  dollars,  and  did  then  and  there  apply  and  dispose  of  to 
their  own  use  the  said  last  named  sum  of  one  thousand  four 
hundred  and  two  dollars  raised  by  the  sale  of  the  last  named 
goods  and  merchandise,  to  the  great  damage  of  the  said  C.  D., 
to  the  evil  example  of  all  others  in  like  case  offending,  contrary, 
etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

Fifth  count.     Same  stated  in  another  shape. 

That  the  said  J.  Q.  A.  and  D.  S.  H.,  on,  etc.,  then  and  there 
being  the  consignees  and  factors  of  the  said  C.  D.,  with  force 
and  arms,  etc.,  in  violation  of  good  faith  and  with  intent  to 
defraud  the  said  C.  D.,  did  apply  and  dispose  of  for  their  own 
use  certain  other  money,  to  wit,  the  sum  of  one  thousand  four 
hundred  and  two  dollars,  which  said  last  mentioned  sum  of 
money  had  before  that  time  been  raised  and  acquired  by  them 
the  said  J.  Q.  A.  and  D.  S.  H.,by  the  sale  of  certain  other  goods 
and  merchandise,  to  wit  {stating  the  goods)^  of  the  goods  and 
property  of  the  said  C.  D.,  which  said  last  named  goods  and 
merchandise  had  been  before  that  time  consigned  for  sale  to  them 
the  said  J.  Q.  A.  and  D.  S.  H.  by  the  said  C.  D.,  to  the  great 
damage  of  the  said  C.  D.,  to  the  evil  example  of  others  in  like 
case  offending,  contrary,  etc.,  and  against,  etc.  {Conclude  as  in 
book  1,  chapter  3.) 

499 


OFFENCES   AGAINST   PROPERTY. 


VI.  OBTAINING  GOODS  BY  FALSE  PRETENCES,  (s) 

(528)  General  frame  of  indictment. 

(529)  Form  used  in  Miissachusetts. 

(530)  Same  in  New  York. 

(531)  Pretence  that  defendant  was  agent  of  a  lottery,  etc. 


(s)  See  Wh.  Cr.  L.  8th  ed.  §  1130,  on  the  subject  generally. 
In  connection  with  this  topic,  the  following  observations  may  be  of  use: — 
It  will  be  noticed  at  the  outset,  that  in  their  operative  clauses,  the  statutes  in 
England  and  in  Massachusetts,  New  York,  and  Pennsylvania,  are  the  same. 
See  AVh.  Cr.  L.  8th  ed.  §  1130.  Keeping  this  in  mind,  the  general  definition 
afforded  by  the  cases  both  in  England  and  this  country  is,  that  a  false  pretence 
must  be  a  false  representation  as  to  some  existing  fact,  made  for  the  purpose  of 
inducing  the  prosecutor  to  part  with  his  property,  and  not  a  mere  promise,  which 
the  prisoner  intends  to  break,  as  for  payment  of  goods  on  delivery.  R.  v.  Good- 
hall,  R.  &  R.  461  ;  R.  V.  Parkes,  2  Leach  616;  Com.  v.  Drew,  19  Pick.  184; 
Com.  V.  Hutchinson,  2  Pa.  L.  J.  242  ;  Com.  v.  Stone,  4  Met.  48  ;  Com.  v. 
Wilgus,  4  Pick.  177.  Thus,  where  an  indictment  stated  the  false  pretence  to 
be,  that  the  prisoner  would  tell  the  prosecutor  where  his  strayed  horse  was,  if  he 
would  give  him  one  pound,  without  alleging  that  the  prisoner  pretended  he  knew 
where  it  was,  it  was  held  bad,  though  the  prisoner  received  the  money,  and  re- 
fused to  tell.  R.  V.  James  Douglass,  1  Mood.  C.  C.  462.  But  it  has  been  held 
that  obtaining  money  as  a  share  of  a  bet,  on  a  fraudulent  representation  that  it  had 
been  laid,  though  to  be  decided  by  the  future  event  of  a  pedestrian  feat,  is  a  false 
pretence.  R.  v.  Young,  8  T.  R.  98.  It  is  not  necessary  to  constitute  the  ofience, 
as  was  thought  in  New  York  (People  v.  Conger,  1  Wheel.  C.  C.  449),  that  the 
jjrisoner  should,  orally,  or  in  writing,  make  any  false  assertion  ;  for  if  he  present 
a  genuine  order  for  the  payment  of  money,  and  assumes  by  his  conduct  to  be  the 
person  to  whom  it  is  payable,  and  by  this  means  fraudulently  obtains  money  which 
belongs  to  another,  he  will  be  within  the  statute.  R.  v.  Story,  R.  &  R.  81. 
Thus  where  a  party  not  being  a  member  of  the  University  of  Oxford,  went  into  a 
shop  there,  wearing  the  academic  cap  and  gown,  and  obtained  goods,  his  dress  was 
held  a  sufficient  false  pretence,  though  nothing  passed  in  words.  R.  v.  Barnard, 
7  C.  &  P.  784;  Wh.  Cr.  L.  8th  ed.  §  1170.  Another  instance  in  which  the 
acts  and  conduct  of  a  party  were  held  tantamount  to  a  false  pretence,  without 
false  verbal  representations,  was  that  where  a  party  obtained  goods  and  money 
in  exchange  for  a  counterfeit  promissory  note,  by  asking  for  goods  at  a  shop,  and 
at  the  same  time  throwing  down,  as  in  payment,  the  note  in  question,  which  pur- 
ported to  be  of  larger  value  than  the  price  of  the  goods,  without  stating  it  to  be 
genuine.  R.  v.  Freeth,  R.  &  R.  127.  [In  this  case  the  first  and  second  counts 
were  on  the  statute  for  false  pretence  ;  the  third  was  for  a  cheat  at  common  law. 
Against  the  last  count,  it  was  argued  that  a  note  for  less  than  twenty  shillings 
being  void  and  prohibited  by  law,  it  was  no  oifence  to  forge  it  (as  to  which  point 
see  Rushworth's  case,  R.  &  R.  318),  or  to  obtain  money  on  it  when  forged,  as 
the  party  to  whom  it  was  uttered  ought  to  have  been  on  his  guard  ;  Graham,  B., 
however,  left  the  case  to  the  jury,  directing  them,  that  the  evidence,  if  true, 
sustained  the  second  and  third  counts.  Verdict,  guilty  on  both  those  counts. 
The  judges  were  of  the  opinion  stated  above,  which  appears,  in  substance,  con- 
fined to  the  second  count ;  but  LaAvrence,  J.,  thought  the  shopkeeper  not  cheated 
if  he  parted  with  his  goods  for  a  piece  of  paper,  which,  being  a  promissory  note 
for  loss  than  twenty  shillings,  he  must  be  presumed  in  law  to  know  was  worth 
nothing,  if  genuine.]  Wliere,  however,  goods  were  obtained  by  means  of  a 
forged  order  in  writing,  requesting  the  prosecutor  to  let  tlie  bearer  have  linen  for 
J.  R.,  and  signed  J.  R.,  this  is  reported  to  have  been  held  by  Taunton,  J.,  to 

500 


FALSE    PRETENCES. 

(532)  Obtaining  money  by  personating  another. 

(533)  Pretence  that  defendant  was  M.  H.,   who  had  cured  Mrs.   C.   at 

the  Oxford  Infirmary,  whereby  he  induced  the  prosecutor  to  buy 
a  bottle  of  ointment,  etc.,  for  which  he  received  a  sovereign, 
giving  15s.  in  change. 


be  uttering  a  forged  request  for  delivery  of  goods,  and  a  felony  under  1  Wm.  IV. 
ch.  66,  s.  19  (R.  V.  Evans,  5  C.  &  P.  553)  ;  whereas,  obtaining  money  from  a 
county  treasurer  by  a  forged  note  purporting  to  be  signed  by  a  magistrate,  for 
paying  the  expenses  of  conveying  vagrants,  had  been  held  a  false  pretence  in  E.. 
V.  Rushworth,  R.  &  R.  317  ;   1  Stark.  C.  P.  396,  S.  C. 

Obtaining  goods  by  giving  in  payment  a  check  on  a  banker  with  whom  the 
party  keeps  no  cash,  and  which  he  knows  will  not  be  paid,  is  indictable  as  a  false  pre- 
tence, though  not  an  indictable  fraud  at  common  law.  R.  v.  Lara,  6  T.  R.  565  ; 
R.  V.  Hunt,  R.  &  R.  460.  In  a  false  pretence  of  this  kind,  it  was  held  to  be 
well  laid,  "  that  the  check  was  a  good  and  genuine  order  for  the  payment  of,  and 
of  the  value  of,  the  sum  specified."  R.  v.  Parker,  2  Mood.  C.  C.  1.  A  count 
alleged  the  prisoner  to  have  obtained  from  G.  P.  by  a  false  pretence  (stated),  a 
sovereign,  "with  intent  to  defraud  G.  P.  of  the  sum  of  five  shillings,  parcel  of 
the  value  of  the  las1>mentioned  piece  of  the  current  gold  coin."  Prisoner  was 
shown  to  have  made  the  pretence  laid,  viz.,  that  he  was  Mr.  H.,  and  thereby 
induced  G.  P.  to  buy,  at  the  cost  of  five  shillings,  a  bottle  of  stuff  he  said  would 
cure  G.  P.'s  child.  G.  P.  gave  him  a  sovereign,  and  received  fifteen  shillings 
in  change.  Prisoner  was  shown  not  to  be  H.  ;  held  to  be  a  false  pretence,  and 
with  intent  well  laid.  R.  v.  Bloomfield,  C.  &  M.  537.  See  infra,  533.  Wh.  Cr. 
L.  8th  ed.  §§  1183,  1184,  1200.  A  false  statement  to  a  parish  ofliicer  as  an  ex- 
cuse for  not  working,  that  the  party  has  not  clothes,  is  not  a  false  pretence  within 
the  act,  though  it  induce  the  officer  to  give  him  clothes,  as  it  was  rather  an  excuse 
for  not  working  than  a  false  pretence  to  obtain  goods.  R.  v.  Wakeling,  R.  &  R. 
504;  Wh.  Cr.  L.  8th  ed.  §§  1173,  1193. 

Obtaining  money  by  a  pretence,  known  by  the  offender  to  be  false  at  the  time, 
is  equally  criminal,  though  the  party  who  parted  with  the  money  laid  a  plan  to 
entrap  him  into  committing  the  offence.  R.  v.  Ady,  7  C.  &  P.  140.  See  Wh. 
Cr.  L.  8th  ed.  §  149. 

In  the  cases  which  have  occurred  in  this  country,  the  same  rules  are  applied. 
Thus,  where  one  under  a  fictitious  name  delivered  to  a  person  to  sell  on  com- 
mission spurious  lottery  tickets,  purporting  to  be  signed  by  himself,  and  received 
from  the  agent  the  proceeds  of  the  sale  (Com.  v.  Wilgus,  4  Pick.  177) ;  where 
a  keeper  of  an  intelligence  office,  by  falsely  pretending  he  had  a  situation  in  view, 
induced  the  prosecutor  to  pay  him  two  dollars  as  a  premium  (Com.  v.  Parker, 
Thacher's  C.  C.  24)  ;  where  the  defendant  falsely  pretended  to  the  prosecutor 
that  a  horse  he  was  about  to  sell  him  was  the  horse  "  Charley,"  whereas  he  was 
not  that  horse,  but  another  of  equal  worth  (State  v.  Mills,  17  Maine  R.  211); 
■where  a  person  obtained  goods  under  the  false  pretence  that  he  lived  with  and 
was  employed  by  A.  B.,  who  sent  him  for  them  (People  v.  Johnson,  12  Johns. 
292 ;  Lambert  v.  People,  9  Cow.  578)  ;  where  the  defendant  represented  him- 
self to  be  in  a  successful  business  as  a  merchant  in  Boston,  with  from  $9000  to 
f  10,000  over  and  above  all  his  debts,  and  to  give  weight  to  this  assertion,  repre- 
sented that  he  had  never  had  a  note  protested  in  his  life,  and  had  then  no  indors- 
ers  ;  where  in  one  count  the  pretence  was,  "  that  he,  the  said  J.  A.  B.,  possessed 
a  capital  of  |8000,  that  the  said  $8000  had  come  to  him  through  his  wife,  it 
being  her  estate,  and  that  a  part  of  it  had  already  come  into  his  possession,  a 
part  would  come  into  his  possession  in  the  month  then  next  ensuing,  and  that 
for  the  remaining  part  thereof  he  would  be  obliged  to  wait  for  a  short  time;" 
and  in  the  second  count,  that  he,  the  said  J.  A.  B.,  possessed  a  caj)ital  of 
),  which  said  $8000  had  come  to  him  through  his  wife,  it  being  her  estate;" 

501 


OFFENCES  AGAINST  PROPERTY. 

(534)  Against  a  member  of  a  benefit  club  or  society,  for  obtaining  monej 

belonging  to  the  rest  of  the  members,  under  false  pretences. 

(535)  Another  form  for  same,   coupled  with  a  production  to  the  society 

of  a  false  certificate  of  burial. 

(536)  First  count.     Pretence  that  a  broken  bank  note  was  good. 

(537)  Pretence  that  a  Hash  note  was  good. 

(538)  Pretence  that  a  worthless  check  or  order  was  good. 
(530)   Another  form  for  same. 

(539a)  Pretence  that  a  certificate  of  stock  was  genuine. 

(540)  Obtaining  goods  by  a  check  on  a  bank  where  the  defendant  had  no 

funds. 
(540a)  Another  form  of  same. 

(541)  Pretence  that  defendant  was  the  agent  of  A.  B.,  and  as  such  had 

been  sent  by  A.  B.  to  C.  D.,  to  receive  certain  money  due  from 

the  latter  to  the  fonner. 
(541a)  Pretence  that  defendant  had  been  sent  for  certain  goods. 
(541ft)  Pretence  that  defendant  was  broker  for  undisclosed  principal. 

(542)  Pretending  to  be  clerk   of  a  steamboat,  and  authorized  to  collect 

money  for  boat. 

(543)  Pretence  made  to  a  tradesman  that  defendant  was  a  servant  to  a 

customer,  and  was  sent  for  the  particular  gootls  obtained. 

(544)  Another  form  for  same. 

(544a)  Pretence  that  defendant  was  asked  by  "  a  person  living  in  a  large 
house  down  the  street"  to  buy  carpet  of  prosecutor. 

(545)  Pretence  that  the  defendant  was  entitled  to  grant  a  lease  of  certain 

freehold  property. 

(546)  Pretence  that  the  defendant  was  authorized  agent  of  the  executive 

committee  of  the  exhibition  of  the  Works  of  Industry  of  all 
Nations,  and  that  he  had  power  to  allot  space  to  private  indi- 
viduals for  the  exhibition  of  their  merchandise. 

(547)  Pretence   that   prisoner  was   an  unmarried   man,  and  that,  having 

been   engaged   to   the   prosecutrix,   and   the   engagement  broken 


and  in  a  third,  "  that  he  was  possessed  of  §8000"  (Com.  i\  Burdick,  2  Barr,  163)  ; 
where  the  defendant  pretended  to  the  prosecutor  that  tli.e  goods  to  be  purcliased 
were  ordered  for  a  hotel-keeper  in  Washington,  who  was  a  man  of  credit,  and  to 
whom  they  were  to  be  immediately  forwarded  (Com.  v.  Spring,  cited  3  Pa.  L. 
J.  89)  ;  where  the  pretence  was  that  the  defendant  owned  real  estate  in  Passyunk 
Road  worth  §7000,  and  that  he  had  personal  property  and  other  means  to  meet 
his  liabilities,  and  that  he  was  in  good  credit  at  the  Philadelphia  Bank  (Com.  v. 
M'Crossin,  3  Pa.  L.  J.  219)  ;  where  the  indictment  charged  that  X.  represented 
to  O.  that  he  possessed  four  valuable  negroes,  and  that  he  would  let  him  have 
them  for  four  bills  of  exchange  on  Philadelphia,  and  that  in  consequence  of  this 
representation,  the  bills  were  drawn  by  O.,  and  that  this  representation  was 
made  knowingly  and  designedly,  and  with  intent  to  cheat  O.  of  his  drafts,  and 
that,  in  fact,  N.  ppssessed  no  such  slaves  as  he  pretended  to  have  (State  v. 
Newell,  1  Mo.  R.  177) ; — in  all  these  cases,  there  was  held  to  be  the  false  repre- 
sentation of  an  existing  fact,  and  that  tlie  exigencies  of  the  statute  therefore  were 
satisfied.     For  a  full  enumeration  see  Wh.  Cr.  L.  8th  ed.^  1130  et  seq. 

502 


FALSE    PRETENCES. 

off,   he  was  entitled  to  support  an   action  of  breach   of  promise 
against  her,  by  which  means  he  obtained  money  from  her. 
(547a)  Pretence  that  a  certain  coat  was  a  particular  uniform. 

(548)  Pretence  that  defendants  were  the  agents  of  P.  N.,  who  was  the 

owner  of  certain  stock  and  land,  etc.,  the  latter  of  which  was  in 
fact  mortgaged. 

(549)  That  defendant  possessed  a  capital  of  eight  thousand  dollars,  which 

had  come  to  him  through  his  wife,  it  being  her  estate,  and  that 
a  part  of  it  had  already  come  into  his  possession,  and  a  part 
would  come  into  his  possession  in  the  month  then  next  ensu- 
ing, etc. 

(550)  Second  count.     That  defendant  had  a  capital  of  $8000,  which 

came  through  his  wife. 

(551)  Third  count.     That  defendant  had  a  capital  of  ^8000. 

(552)  Pretence  that  defendant  was  well  off  and  free  from  debt,  etc. 

(553)  Second  count.     Setting  forth  the  pretence  more  fully. 

(554)  Pretence  that  certain  property  of  the  defendant  was  unincumbered, 

and  that  he  himself  was  free  from  debts  and  liabilities. 
(554a)  Pretence  that  certain  goods  were  unincumbered. 

(555)  Pretence  that  defendant  had  then  purchased  certain  property,  which 

it  was  necessary  he  should  immediately  pay  for. 

(556)  Pretence   that   a   certain   draft   for   ^7700,    drawn   by   a   house   in 

Charleston  on  a  house  in  Boston,  which  the  defendant  exhibited 
to  the  prosecutor,  had  been  protested  for  non-payment ;  that  the 
defendant  had  had  his  pocket  cut,  and  his  pocket-book  contain- 
ing $195  stolen  from  it;  that  a  draft  drawn  by  a  person  in 
Philadelphia,  which  the  defendant  showed  the  prosecutor,  had 
been  received  by  the  defendant  in  exchange  for  the  protested 
draft,  and  that  the  defendant  expected  to  receive  the  money  on  the 
last-mentioned  draft. 
(556a)   Pretence  that  defendant  had  half  of  certain  bank  notes. 

(557)  Pretence  that  a  certain  watch  sold  by  defendant  to  prosecutor  was 

gold. 
(557a)  Pretence  that  a  chain  was  gold. 

(558)  Obtaining  money  by  means  of  a  false  warranty  of  the  weight  of  goods. 

(559)  Obtaining  money  by  a  false  warranty  of  goods. 

(559a)  Pretence  that  a  certain  brickyard  was  good  and  profitable. 

(560)  Pretence  that  goods  were  of  a  particular  quality. 

(561)  Pretence  that  a  certain  horse  to  be  sold,  etc.,  was  sound,  and  was  the 

horse  called  "  Charley." 

(562)  Pretence  that  a  horse  and  phaeton  were  the  property  of  a  lady  then 

shortly  before  deceased,  and  that  the  horse  was  kind,  etc. 

(563)  Second  count.     Like  the  first,  except  that  the  offering  for  sale 

was  alleged  to  have  been  by  T.  K.  the  elder,  only. 

(564)  Other  pretence  as  to  the  value  and  history  of  a  horse,  which  the  pris- 

oners sold  to  the  prosecutor. 

503 


(528)  OFFENCES  AGAINST  PROPERTY. 

(565)  Pretence  that  one  J.  P.,  of  the  city  of  Washington,  wanted  to  buy  some 

brandy,  etc.  ;  that  said  J.  P.  kept  a  large  hotel  at  Washington, 
etc. ;  that  defendant  was  sent  by  said  J.  P.  to  purchase  brandy  as 
aforesaid,  and  that  defendant  would  pay  cash  therefor,  if  prosecu- 
tor would  sell  him  the  same.     First  count. 

(566)  Second  count.     That  defendant  was  requested  by  one  J.  P., 

who  kept  a  large  hotel  in  Washington  city,  to  purchase  some 
brandy  for  said  J.  P.,  and  that  if  prosecutor  would  sell  de- 
fendant two  half  pipes  of  brandy,  defendant  would  pay 
prosecutor  cash  for  the  same  shortly  after  delivery. 

(567)  Third  count.     That  defendant  had  been  requested  by  one  J. 

P.  to  purchase  for  him  some  brandy,  that  he  (the  said  J.  P.) 
kept  a  hirge  hotel  in  Washington,  etc. 
(567a)  Pretence  that  defendant  was  a  large  dealer  in  potatoes,  etc. 

(568)  Pretence  that  one  of  the  defendants,  having  advanced  money  to  the 

other  on  a  deposit  of  certain  title  deeds,  had  himself  deposited  the 
deeds  with  a  friend,  and  that  he  received  a  sum  of  money  to  re- 
deem them  ;   with  counts  for  conspiracy. 

(569)  For  pretending  to  an  attesting  justice  and  a  recruiting  sergeant  that 

defendant  was  not  an  apprentice,  and  thereby  obtaining  money  to 
enlist. 

(570)  For  obtaining  more  than  the  sum  due  for  carriage  of  a  parcel  by  pro- 

ducing a  false  ticket. 

(571)  Pretence  that  defendant  had  no  note  protested  for  non-payment,  that 

he  was  solvent,  and  worth  from  nine  to  ten  thousand  dollars. 

(572)  Obtaining  acceptances  on  drafts,  by  pretence  that  certain  goods  had 

been  purchased  by  defendant  and  were  about  to  be  shipped  to  prose- 
cutor. 

(573)  Obtaining  acceptances  by  the  pretence  that  defendants  had  certain 

goods  in  storage  subject  to  prosecutor's  order. 

(574)  Receiving  goods  obtained  by  false  pretences,  under  the  English  statute. 
(574a)  Another  form. 

(528)  General  frame  of  indictment.{t) 

That  A.  B.,((z)etc.,  on,  etc.,  at,  etc.,  unlawfully  and  knowingly 
devising  and  intending  to  cheat  and  defraud,(i;)  etc.  {stating  party 
intended  to  be  defrauded),  of  his  goods,  moneys,  chattels,  and  pro- 

(0  See  VTh.  Cr.  L.  8th  ed.  §  1210. 

(«)  All  the  parties  concerned  in  the  offence  may  be  joined  as  co-defendants. 
And  evidence  under  a  joint  indictment  that  one  of  them,  with  the  concurrence 
and  approval  of  the  other,  made  the  false  pretences  charged,  warrants  the  con- 
viction of  both.  Wh.  Cr.  L.  8th  ed.  §  1171  ;  Com.  (-•.  Harley,  7  Met.  462.  Par- 
ties who  have  concurred  and  assisted  in  the  fraud  may  be  convicted  as  principals, 
though  not  present  at  the  time  of  making  the  pretence  and  obtaining  the  money 
or  goods.     R.  I'.  Moland,  6  C.  &  P.  657. 

(>•)  This  averment  is  not  necessary  when  it  may  be  Implied  from  subsequent 
averments. 

504 


FALSE    PRETENCES.  (528) 

perty,  did  then  and  there  unlawfully,  knowingly,  and  de- 
8ignedly(?/;)  falsely  pretend(a:)  to  C.  D.,(?/)  t\\Sii{z)  {setting  out  the 
iwetence)^  whereas,  in  truth  and  fact  {negativing  the  pretence) ^{a) 
as  he,  the  said  A.  B.,  then  and  there  well  knew  [or^  which 
said  pretence  the  said  A.  B.  then  and  there  well  knew  to  be 
false),(^)  by  color(c)  and  means((/)  of  which  said  false  pretence 
and  pretences,  he,  the  said  A.  B.,  did  then  and  there  unlawfully, 
knowingly,  and  designedly  obtain(e)  from  the  said  C.  D.  [stating 
the  property  ohtained)^{f)  being  then  and  there  the  property  of 
the  said  C.  r>.,(^)  with  intent  to  cheat  and  defraud  the  said  C.  D., 
to  the  great  damage  of  the  said  C.  D.,(A)  contrary,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

(w)  An  indictment  averring  that  the  defendant  did  "falsely  and  feloniously 
pretend,"  etc.,  is  at  common  law  bad.  R.  v.  Walker,  6  C.  &  P.  657.  In  those 
states,  however,  as  in  New  York,  where  the  offence  is  a  felony,  the  averment  is 
of  course  essential.  "Designedly"  is  usually  necessary  under  statute.  State  v. 
Bagtjerly,  21  Tex.  757.  "  Knowingly"  is  essential  in  Texas.  Maranda  v. 
State,  44  Tex.  442.      See  generally  Wh.  Cr.  L.  8th  ed.  ?  1224. 

(x)  The  word  "pretend"  is  indispensable,  though  the  word  "falsely,"  ac- 
cording to  the  English  practice  (R.  v.  Airey,  2  East,  30),  is  not  essential,  the 
truth  of  the  pretences  being  subsequently  negatived.  It  is  much  safer,  how- 
ever, to  insert  it,  and  its  omission  has  been  held  in  this  country  fatal.  Hamilton 
V.  State,  16  Fla.  288. 

(?/)  The  party  injured  must  be  described  with  the  same  accuracy  as  has  been 
shown  to  be  requisite  in  larceny.  Wh.  Cr.  L.  8th  ed.  §  97  7.  Any  variance  in 
his  name  is  at  common  law  fatal.  AVhat  are  variances  are  elsewhere  considered. 
Wh.  Cr.  Ev.  §  91  ;   snpra,  notes  to  form  2,  p.  20. 

Pretences  alleged  to  have  been  made  to  a  firm  are  proved  by  showing  that 
they  were  made  to  one  of  the  firm  (Stoughton  )).  State,  2  Oh.  St.  562)  ;  and  a 
pretence  made  use  of  to  an  agent,  who  communicates  it  to  his  principal,  and  who 
is  influenced  bv  it  to  act,  is  a  pretence  made  to  the  principal.  Wh.  Cr.  L.  8th 
ed.  §  1171  ;  Wh.  Cr.  Ev.  §§  91,  102  ;  R.  v.  Lara,  1  Leach  C.  C.  647  ;  6  T.  R. 
565;  Com.  v.  Call,  21  Pick.  515;  Com.  v.  Harley,  7  Met.  462.  See  also  R.  v. 
Keeley,  2  Den.  C.  C.  68;  R.  v.  Tully,  9  C.  &  P.  227;  R.  v.  Dewey,  11  Cox 
C.  C.  115;  Com.  v.  Bagley,  7  Pick. '279;  Com.  v.  Mooar,  Thach.  C.  C.  410; 
Stoughton  I'.  State,  2  Oh.  St.  562;  Britt  v.  State,  9  Humph.  31.  A  pretence 
made  to  A.  in  B.'s  hearing,  by  which  money  is  obtained  from  B.,  may  be  laid 
as  a  pretence  made  to  B.  R.  v.  Dent,  1  C.  &  K.  249.  The  money  of  a  benefit 
society,  whose  rules  were  not  enrolled,  was  kept  in  a  box,  of  which  E.,  one  of 
the  stewards,  and  two  others,  had  keys ;  the  defendant,  on  the  false  pretence 
that  his  wife  was  dead,  which  pretence  he  made  to  the  clerk  of  the  society  in  the 
hearing  of  E.,  obtained  from  the  hands  of  E.,  out  of  the  box,  five  pounds;  it 
was  held  that  in  an  indictment  the  pretence  migl  t  be  laid  as  made  to  E.,  and  the 
monev  as  the  property  of  "  E.  and  others,"  obtained  from  E.  R.  v.  Dent,  1 
C.  &  k.  249.  Money  paid  by  or  to  an  agent  is  rightfully  laid  as  money  paid  by 
or  to  a  principal.  Wh.  Cr.  Ev.  §§  94-102.  And  so  where  money  is  paid  to  the 
wife  for  the  husband.  R.  v.  Moseley,  Leigh  &  C.  92.  See  R.  v.  Carter,  7  C,  & 
P.  134;   Sandy  v.  State,  60  Ala.  58;  Wh.  Cr.  L.  8th  ed.  §  1227. 

(z)  The  pretences  must  be  speciallv  averred  ;  R.  v.  Mason,  2  T.  R.  581  ;  R. 
V.  Henshaw,  L.  &  C.  444  ;  R.  v.  Goldsmith,  12  Cox  C.  C.  4  79  ;  L.  R.  2  C.  C. 
74 ;  State  v.  Jackson,  39  Conn.  229  ;  though  their  omission  is  now  in  England 

505 


(528) 


OFFENCES   AGAINST   PROPERTY. 


cured  b_y  verdict.  But  at  common  law  they  must  be  accurately  and  adequately 
set  forth,  so  that  it  may  clearly  appear  that  there  was  a  false  pretence  of  an  ex- 
isting fact.  Ibid. ;  R.  v.  Henshaw,  L.  &  C,  444 ;  9  Cox  C.  C.  472  ;  Bonnell  v. 
State,  64  Ind.  498. 

The  pretences  were  held  inadeciuately  stated  in  an  indictment  in  which  the 
first  count  charged  that  C.  unlawfully  did  falsely  pretend  to  P.  that  he,  C,  was 
sent  by  W.  for  an  order  to  go  to  T.  for  a  pair  of  shoes,  by  means  of  which  false 
pretence  he  did  obtain  from  T.  a  pair  of  shoes,  of  the  goods  and  chattels  of  T., 
with  intent  to  defraud  P.  of  the  price  of  the  said  shoes,  to  wit,  nine  shillings,  of 
the  moneys  of  P.  The  second  count  charged  that  he  falsely  pretended  to  P. 
that  W.  had  said  that  P.  was  to  give  him,  the  defendant,  an  order  to  go  to  T. 
for  a  pair  of  shoes,  by  means  of  wliich  false  pretence  he  did  obtain  from  T.,  in 
the  name  of  P.,  a  pair  of  shoes  of  the  goods  of  T.,  with  intent  to  defraud  T.  of 
the  same.  R.  v.  Tully,  9  C.  &  P.  227  —  Gurney  ;  though  compare  R.  v.  Brown, 
2  Cox  C.  C.  348— per  Patteson. 

An  indictment  was  also  held  defective  in  a  case  where  it  was  charged  that  C. 
falsely  pretended  to  P.,  whose  mare  and  gelding  had  strayed,  that  he,  C,  would 
tell  him  where  they  were,  if  he  would  give  him  a  sovereign  down.  P.  gave  the 
sovereign,  but  the  prisoner  refused  to  tell.  It  was  said  that  the  indictment 
should  have  stated  that  he  pretended  he  knew  where  they  were.  R.  v.  Douglas, 
1  M.  C.  C.  462. 

In  a  case  already  cited  on  the  merits,  the  indictment  charged  that  C,  contriv- 
ing and  intending  to  cheat  P.,  on  a  day  named,  did  falsely  pretend  to  him  that 
he,  C,  then  was  a  captain  in  her  majesty's  fifth  regiment  of  dragoons  ;  by  means 
of  which  false  pretence  he  did  obtain  of  P.  a  valuable  security,  to  wit,  an  order 
for  the  payment  of  £500,  of  the  value  of  £500,  the  property  of  P.,  with  intent 
to  cheat  P.  of  the  same  ;  whereas  in  truth  he  (C,  the  defendant)  was  not,  at 
the  time  of  making  such  false  pretence,  a  captain  in  her  majesty's  regiment ;  and 
the  defendant,  at  the  time  of  making  such  false  pretence,  well  knew  that  he  was 
not  a  captain,  etc.  This  was  held  sufficient  after  conviction  and  judgment.  It  was 
held  not  necessary  to  allege  more  precisely  that  the  defendant  made  the  par- 
ticular pretence  with  the  intent  of  obtaining  the  security  ;  nor  how  the  particular 
pretence  was  calculated  to  efiect,  or  had  effected,  the  obtaining ;  and  it  was  fur- 
ther held  that  the  truth  of  the  pretence  was  well  negatived,  it  appearing  suffi- 
ciently that  the  pretence  was  that  the  defendant  was  a  captain  at  the  time  of  his 
making  such  pretence,  which  was  the  fact  denied ;  and  it  was  unnecessary  to 
aver  expressly  that  the  security  was  unsatisfied,  at  any  rate  since  7  Geo.  IV.,  c. 
64,  s.  21,  the  objection  being  taken  after  verdict,  and  the  indictment  following 
the  words  of  the  statute  creating  the  offence.  Hamilton  v.  R.  (in  error)  9  A.  & 
E.  (jST.  S.)  271  ;   10  Jur.  1028;   16  L.  J.  M.  C.  9  ;   2  Cox  C.  C.  11. 

D.  was  one  of  many  persons  employed  whose  wages  were  paid  weekly  at  a 
pay-table.  On  one  occasion,  when  D.'s  wages  were  due,  C.  said  to  a  little  boy, 
"I  will  give  you  a  penny  if  you  will  go  and  get  D.'s  money."  The  boy  inno- 
cently went  to  the  pay-table,  and  said  to  the  treasurer,  "I  am  come  for  D.'s 
money;"  and  D.'s  wages  were  given  to  him.  He  took  the  money  to  C,  who 
was  waiting  outside,  and  who  gave  the  boy  the  promised  penny  ;  it  was  ruled 
that  0.  could  not  be  convicted  on  the  charge  of  obtaining  the  money  from  the 
treasurer  by  falsely  pretending  to  the  treasurer  that  he,  C,  had  authority  from 
D.  to  receive  his  mon.ey,  or  of  obtaining  it  from  the  treasurer  and  the  boy,  by 
falsely  pretending  to  the  boy  that  he  had  such  authority,  or  of  obtaining  it  from 
the  boy  by  the  like  false  pretences  to  the  boy  ;  though  he  might  be  convicted  on 
a  count  charging  him  with  fraudulently  obtaining  it  from  the  treasurer  by  falsely 
pretending  to  the  treasurer  that  the  boy  had  this  authority.  R.  v.  Butcher,  Bell 
C.  C.  6  ;  ^8  Cox  C.  C.  77. 

If  the  pretences  explain  themselves,  and  require  no  innuendoes  (as  to  innuen- 
does, see  notes  to  577,  939,  and  Wh.  Cr.  L.  8th  ed.  §§  1220,  1303),  it  is  enough  to 
state  them  in  the  terms  in  which  they  were  expressed  to  the  prosecutor  at  the 
time  of  the  fraud.     2  East  P.  C.  c.  18,  s.  13,  pp.  837,  838.     See  Com.  v.  Hul- 

506 


FALSE    PRETENCES.  (528) 

bert,  12  Met.  446;  Glackan  v.  Com.,  3  Mete.  (Ky.),  232;  State  v.  Webb,  26 
Iowa,  262.  But  verbal  exactness  is  not  required;  as  it  is  enough  if  the  effect  be 
substantially  given;  R.  v.  Scott,  cited  in  R.  v.  Parker,  2  Mood.  C.  C.  1  ;  8  C. 
&  P.  825  ;  State  v.  Call,  48  N.  H.  126  ;  nor  need  all  that  was  said  be  stated  if 
the  operative  pretence  is  averred.  R.  v.  Hewgill,  Dears.  C.  C.  351  ;  Cowen  v. 
People,  14  111.  348.  But  a  variance  between  the  indictment  and  the  evidence, 
as  to  the  effect  of  the  pretences,  will  be  fatal ;  R.  v.  Plestow,  1  Camp.  494  ;  R. 
V.  Bulmer,  L.  &  C.  476  ;  9  Cox  C.  C.  492;  State  v.  Locke,  35  Ind.  419  ;  though 
it  is  not  necessary  to  set  out,  as  in  forgery,  the  tenor  of  a  bad  note  by  which 
property  is  obtained.  Wh.  Cr.  L.  8th  ed.  §  1217.  But  if  set  out,  a  variance 
may  beVatal.     Wh.  Cr.  L.  8th  ed.  §  1233. 

The  relation  of  the  fraud  to  the  bargain,  in  cases  of  sale,  must  appear.  R.  v. 
Reed,  7  C.  &  P.  848  ;  R.  v.  Martin,  L.  R.  1  C.  C.  56  ;  State  v.  Phillbrick,  31 
Me.  401  ;  Com.  v.  Jeffries,  7  Allen,  549  ;  Enders  v.  People,  20  Mich.  233  ; 
State  V.  Orvis,  13  Ind.  569  ;  State  i*.  Anderson,  47  Iowa,  142.  Thus  it  was 
held  insufficient,  in  an  indictment  for  the  sale  of  a  spurious  watch  as  genuine,  to 
aver  merely  that  S.,  the  defendant,  falsely  pretended  to  the  prosecutor  "  that  a 
certain  watch  which  he,  the  said  S.,  then  and  there  had,  was  a  gold  watch, 
by  means  whereof  said  S.  then  and  there  unlawfully,  etc.,  did  obtain  from 
said  B.  (the  prosecutor)  sundry  bank  bills,  etc.,  of  the  value,  etc.,  with  intent 
the  said  B.  then  and  there  to  cheat  and  defraud  of  the  same ;  whereas  in 
truth  and  fact  said  watch  was  not  then  and  there  a  gold  watch,  and  said  S.  then 
and  there  well  knew  that  the  same  was  not  a  gold  watch,  to  the  damage,"  etc. 
Com.  V.  Strain,  10  Met.  521;  S.  P.,  Com.  urLannan,  1  Allen,  590.  "The 
indictment,"  said  Dewey,  J.,  "does  not  allege  any  bargain  nor  any  colloquies 
as  to  a  bargain  for  a  watch  ;  nor  any  propositions  of  B.  to  buy,  or  of  the  defend- 
ant to  sell,  a  watch  ;  nor  any  delivery  of  the  watch,  as  to  which  the  false  pre- 
tences were  made,  in  the  possession  of  B.,  as  a  consideration  for  the  money  paid 
the  defendant.  It  seems  to  us  that  when  money  or  property  is  obtained  by  a 
sale  or  exchange  of  property,  effected  by  means  of  false  pretences,  such  sale  or 
exchange  ought  to  be  set  forth  in  the  indictment,  and  that  the  false  pretence 
should  be  alleged  to  have  been  with  a  view  to  effect  such  sale  or  exchange,  and 
that  by  reason  thereof  the  party  was  induced  to  buy  or  exchange,  as  the  case 
may  be."  Com.  v.  Strain,  supra.  See  Com.  v.  Nason,  9  Gray,  125  ;  Com.  v. 
Jeffries,  7  Allen,  549.  As  to  bad  pleading  of  false  agency,  see  R.  v.  Henshaw, 
L.  &  C.  444. 

In  fine,  when  the  case  is  one  of  sale  or  exchange,  the  indictment  should  set 
forth  the  sale  or  exchange,  and  aver  that  the  false  pretences  were  made  with  a 
view  to  effect  such  sale  or  exchange,  and  that  by  reason  thereof  the  ])arty  was 
indu(;ed  to  part  with  his  property.  R.  v.  Reed,  7  C.  &  P.  848  ;  State  ?'.  Phil- 
brick,  31  Me.  401  ;  Enders  v.  People,  20  Mich.  233.  In  New  York  the  law  is 
less  stringent;  Skiff  t'.  People,  2  Parker  C.  R.  139;  and  where  an  indictment 
for  obtaining  property  under  false  pretences  charged  that  the  prisoner,  with  an 
intent  to  defraud  one  A.  G.,  Jr.,  did  "falsely  pretend  and  represent  to  the  said 
A.  G.,  Jr.,  for  the  purpose  of  inducing  the  said  A.  G.,  Jr.,  to  part  with  a  yoke 
of  oxen,  of  the  goods  and  chattels  of  the  said  A.  G.,  Jr.,  that,"  etc.,  "by  which 
said  false  pretences  he,"  the  prisoner,  "  then  did  unlawfully  obtain  from  the  said 
A.  G.,  Jr.,"  the  oxen  mentioned  ;  it  was  held  that  there  was  a  substantial  aver- 
ment that  the  prisoner  had  obtained  the  property  from  the  prosecutor  by  means 
of  the  false  pretences  made,  and  the  latter's  belief  therein,  and  that  the  indict- 
ment was  not  defective  in  that  particular.  Clark  v.  People,  2  l^ansing,  330. 
See  to  same  effect.  State  v.  Vanderbilt,  3  Dutch.  328.  Wh.  Cr.  L.  8th  ed.  §  1227. 

An  indictment  alleged  that  G.  designedly  and  unlawfully  did  pretend  to  N. 
that  A.  wanted  to  buy  cheese  of  N.,  and  had  sent  G.  to  buy  it  for  him,  and  that 
a  certain  paper  described,  purporting  to  be  a  ten  dollar  bill  on  the  Globe  Bank, 
in  the  city  of  New  York,  was  a  good  bill,  and  of  the  value  of  ten  dollars ;  by 
means  of  which  false  pretences  said  G.  unlawfully  obtained  from  said  N.  forty 
pounds  of  cheese,  of  the  value  of  four  dollars,  and  sundry  bank  bills  and  silver 

507 


(528) 


OFFENCES   AGAINST   PROPERTY. 


coins  amounting  to  and  of  the  value  of  six  dollars,  with  intent  to  cheat  and  de- 
fraud;  whereas  the  said  A.  did  not  want  to  buy  cheese  of  said  N.,  and  had  not 
sent  G.  to  him  for  that  purpose,  and  the  paper  was  not  a  good  bill  of  the 
Globe  Bank,  in  the  city  of  Xew  York,  and  was  not  of  the  value  of  ten  dollars, 
but  spurious  and  worthless.  It  was  held,  on  motion  in  arrest  of  judgment,  that 
the  false  pretences  set  forth  were  such  as  might  have  been  effectual  in  accomplish- 
ing a  fraud  on  N.,  in  the  manner  alleged  ;  that  neither  the  omission  to  allege  that 
G.  knowingly  made  the  false  pretences,  nor  the  omission  to  mention  any  person 
whom  he  intended  to  defraud,  rendered  the  indictment  bad  ;  and  that  there  was 
no  objection  to  the  indictment  on  the  ground  of  duplicity.  Com.  v.  Hulbert,  12 
Met.  446. 

In  Com.  V.  Coe,  115  Mass.  481,  elsewhere  noticed,  we  have  the  following  from 
Wells,  J.  :  "The  indictment  alleges  that  the  defendant  falsely  pretended  that  a 
certain  certificate  of  shares  of  corporate  stock  was  good  and  genuine  and  of  value 
as  security  for  a  loan  of  money  which  Ferris  was  induced  to  make  to  him  there- 
on. The  pretended  certificate  is  set  forth,  and  purports  to  be  a  certificate  that 
the  said  John  Ferris  is  the  owner  of  the  shares  of  stock  which  it  represents. 

"1.  One  objection  raised  by  the  motion  to  quash  is  that  the  indictment  does 
not  show  how  Coe  could  pledge  such  stock,  or  use  it  to  secure  a  loan  from  Ferris, 
or  in  any  way  defraud  Ferris  by  means  of  it  ;  Ferris  being  already  the  apparent 
owner.  The  transaction  represented  by  the  indictment,  if  genuine,  would  be 
simply  that  the  borrower  prepares  his  security  by  causing  the  shares  of  stock, 
whether  owned  by  himself  or  procured  from  others  for  the  purpose  is  immaterial, 
to  be  transferred  to  the  name  of  the  proposed  lender,  and  a  certificate  issued  ac- 
cordingly. Upon  procuring  the  loan,  the  delivery  of  the  certificate  completes 
the  security.  The  certificate,  although  previously  made  in  the  name  of  the 
lender,  does  not  become  his  in  fiict  until  the  loan  has  been  perfected  and  the  cer- 
tificate delivered  to  him  in  pursuance  of  its  purpose.  If  the  certificate  is  forged, 
or  false  and  fraudulent  in  its  preparation,  it  is  manifest  that  he  is  defrauded  when 
induced  to  take  it  as  genuine  and  advance  money  in  reliance  upon  it.  The  offer 
of  the  certificate  for  such  a  purpose  is  a  representation  that  it  is  what  it  purports 
to  be  upon  its  face.  Cabot  Bank  v.  Morton,  4  Gray,  156  ;  Com.  r.  Stone,  4 
Met.  43.  The  indictment  sufficiently  sets  forth  in  what  manner  Ferris  was  de- 
frauded by  means  of  the  certificate. 

"2.  The  certificate  is  an  instrument  complete  in  itself,  and  requires  no  further 
allegations  to  fully  set  forth  the  right  or  contract  of  which  it  is  a  symbol,  as  was 
necessary  in  Com.  v.  Ray,  3  Gray,  441,  and  Com.  v.  Hinds,  101  Mass.  209. 
And  besides,  this  offence  consists  in  the  use  of  false  tokens,  and  not  the  forgery  of 
a  written  instrument. 

"3.  It  is  unnecessary  that  the  indictment  should  set  forth  in  its  terms,  or  by 
description,  the  check  received  for  the  loan.  It  is  presumed  to  have  been  given 
and  received  as  payment  of  the  sum  of  money  agreed  to  be  lent.  Its  designation 
as  a  '  check  and  order  for  the  payment  of  money'  sufficiently  indicates  its  charac- 
ter ;  and  as  a  description  of  the  property  obtained  by  the  false  pretences  would 
be  good.  Com.  v.  13rettun,  100  ]\Iass.  206.  But  there  is  also  in  the  indictment 
an  allegation  that  the  defendant  did  obtain  the  sum  of  seven  thousand  dollars,  of 
the  property  of  said  Ferris. 

"  4.  It  is  indeed  alleged  that  the  defendant  procured,  and  Ferris  was  induced 
to  part  with,  the  money  as  a  loan  only.  But  it  is  also  alleged  that  he  thereby 
did  obtain  it  with  intent  to  cheat  and  tlefraud.  If  so  obtained,  it  is  none  the  less 
a  fraud  because  obtained  in  the  form  of  a  loan.  Com.  v.  Lincoln,  11  Allen, 
233. 

"  5.  Such  representations  relate  only  to  the  validity  and  value  of  the  security, 
and  not  to  the  means  or  ability  of  the  party  to  pay  ;  and  are  therefore  not  with- 
in the  exception  requiring  a  writing.     Gen.  Sts.  c.  161,  §  54. 

"  6.  The  allegation  that  the  certificate  '  was  of  the  tenor  following,'  must  be 
referred  to  the  time  when  the  false  representation  was  made,  of  which  it  consti- 
tutes the  main  part.     The  copy  correctly  sets  forth  its  tenor. 

508 


FALSE   PRETENCES.  (528) 

"As  to  the  objections  taken  at  the  trial : — 

"1.  The  indorsements  upon  the  certificate  form  no  part  of  it.  They  are  not 
required  to  be  set  out,  either  as  a  part  of  the  means  of  deceit,  or  as  a  description 
of  the  false  token  used.  Their  appearance  upon  the  certificate  when  produced 
does  not  therefore  occasion  a  variance. 

"  2.  It  is  only  necessary  that  tlie  indictment  set  out  the  false  representations 
upon  which  the  property  was  obtained.  That  a  genuine  note  was  given  is  a 
matter  of  evidence,  bearing  upon  the  question  whether  the  money  was  in  fact 
obtained  by  means  of  the  false  certificate.  The  note  forms  no  part  of  the  offence 
charged,  either  by  way  of  description  or  otherwise  ;  and  no  allegation  in  regard 
to  it  is  necessary.  The  offence  is  the  same,  with  or  without  the  presence  of  that 
fact.     No  variance  comes  from  its  appearance  in  the  evidence. 

"3.  The  allegation  of  the  indictment  that  the  certificate  was  not  a  good,  valid, 
and  genuine  writing  and  certificate  of  ownership  of  stock,  but  was  false,  forged, 
and  counterfeit,  and  of  no  value,  is  sustained  by  the  evidence.  Even  if  it  might 
have  been  of  some  value  as  a  means  of  securing  to  the  holder  the  one  share  for 
which  it  was  originally  issued  as  a  genuine  and  valid  certificate,  proof  of  such 
value  does  not  constitute  a  variance.     It  is  not  a  descriptive  allegation. 

"  4.  Evidence  of  the  possession  and  use  of  other  altered  and  false  certificates 
by  the  defendant,  about  the  same  time,  whether  before  or  afterwards,  was  com- 
petent to  show  that  his  possession  of  those,  for  the  use  of  which  he  was  indicted, 
was  not  casual  and  accidental.  They  were  all  between  the  dates  of  the  transac- 
tions charged  in  the  two  counts.  They  were  admitted  and  allowed  to  be  used 
only  to  show  guilty  knowledge.  For  this  purpose  the  evidence  was  admissible  ; 
and  the  instructions  sufliiciently  guarded  its  use.  Com.  v.  Stone,  4  Met.  43,  47  ; 
Com.  V.  Price,  10  Gray,  472  ;   Com.  v.  Edgerly,  10  Allen,  184. 

"  5.  Tlie  fact  that  the  certificate  was  offered  and  received  as  security  for  the 
loan  furnishes  some  evidence  upon  which  it  was  competent  for  the  jury  to  find 
that  Ferris  was  thereby  induced  to  part  with  his  money.  It  is  not  necessary  that 
there  should  have  been  any  explicit  declaration  or  express  words  to  that  effect, 
at  the  time  of  the  nogotiation.  It  was  for  the  jury  to  determine  how  far  the 
testimony  of  Ferris,  that  he  '  had  every  confidence  in'  the  defendant,  in  reply  to 
the  question  if  he  did  not  rather  trust  Coe  than  any  security,  was  a  denial  of  re- 
liance upon  the  security. 

"  6.  The  instruction  upon  this  last  point  would  be  objectionable  if  it  bore  the 
significance  which  the  defendant  ascribes  to  it.  The  presiding  judge  suggested 
the  query,  whether,  if  Ferris  had  known  it  to  be  a  forged  and  worthless  piece  of 
paper,  he  would  have  made  the  loan  as  he  did  ;  and  then  proceeded  to  say,  '  If 
he  would  not,  and  was  in  fact  induced  to  make  the  loan  by  the  delivery  of  the 
certificate,  and  his  belief  in  its  genuineness  and  value,'  and  the  jury  find  the  other 
facts  constituting  the  off"ence,  it  would  be  sufficient ;  adding  also,  '  And  the  fact, 
if  it  was  a  fact,  that  the  defendant  then  entertained  the  purpose  of  repaying  the 
loan  at  some  future  time,  would  not  divest  the  act  of  its  criminality.'  " 

An  indictment  alleging  that  the  prisoners  falsely  pretended  to  A.  that  some 
soot  which  they  then  delivered  to  A.  weiglied  one  ton  and  seventeen  cwt.,  where- 
as it  did  not  weigh  one  ton  seventeen  cwt.,  but  only  weighed  one  ton  and  thirteen 
cwt.,  they  well  knowing  the  pretence  to  be  false,  by  means  of  Avliich  false  pre- 
tence they  obtained  from  A.  8s.,  with  intent  to  defraud,  is  good,  and  sufficiently 
describes  an  indictable  false  pretence.  R.  v.  Lee,  L.  &  C.  418  ;  9  Cox  C.  C. 
4G0.     See  Wh.  Cr.  L.  8th  ed.  §  1159. 

The  amount  of  property  stated  by  the  defendant  to  belong  to  him  must  be 
proved  as  laid.  Thus  where  the  averment  was  that  the  defendant  n-jjresented 
a  firm,  of  which  he  was  a  member,  to  be  then  owing  not  more  tlian  tlu'ce  hun- 
dred dollars,  and  evidence  was  given  of  a  representation  by  him  that  the  firm 
did  not  then  owe  more  than  four  hundred  dollars  ;  this  was  held  to  be  a  fatal 
variance.     Com.  i'.  Davidson,  1  Cush.  33.      Sec  Todd  v.  State,  31  Ind.  ')14. 

A  pretence  that  the  prisoner  "  had  in  Macon  seven  thousand  dollars"  is  not 

509 


(528) 


OFFENCES   AGAINST   PROPERTY. 


sustained  by  proof  of  a  pretence  "that  lie  had  seven  dollars  less  than  seven 
thousand  in  a  bank  in  Macon."     Langtry  v.  State,  30  Ala.  537. 

In  an  indictment  setting  forth  that  a  bad  and  spurious  note  or  coin  had  been 
passed  by  the  prisoners  on  the  prosecutor,  It  is  not  necessary  to  set  forth  the  note 
at  large  or  specifically  to  describe  the  coin.  Wh.  Cr.  L.  8th  ed.  §§  1129,  1162, 
1222;  R.  V.  Coulson,  1  Den.  C.  C.592  ;  4  Cox  C.  C.  227  ;  T.  &  M.  332;  State 
V.  Boon,  4  Jones  (N.  C.)  463  ;  State  v.  Dyer,  41  Tex,  520.  "When  the  set- 
ting out  the  instrument  in  the  indictment,"  said  "Wilde,  C.  J.,  "cannot  afford 
the  court  information,  it  is  unnecessary  that  it  should  be  set  out.  Here  it  is  al- 
leged that  a  certain  piece  of  paper  was  unlawfully  and  falsely  represented  by  the 
prisoner  to  be  a  good  and  valid  promissory  note,  whereas  it  was  not  so.  It  ap- 
pears to  me  that  all  the  cases  show  that  where  the  instrument  has  been  required 
to  be  set  out  in  the  indictment,  something  has  turned  on  the  construction  of  the 
paper."  R.  v.  Coulson,  ut  supra.  Where  it  is  charged  in  the  indictment  that 
the  prisoner  obtained  the  property  upon  the  security  of  his  promissory  note, 
through  false  and  fraudulent  representations  as  to  his  ability  to  pay  the  same,  an 
averment  of  his  neglect  to  make  payment  of  the  note  is  not  essential.  Clark  v. 
People,  2  Lansing,  330.  But  the  purport  or  generic  designation  must  be  accu- 
rately stated.  Com.  v.  Stone,  4  Met.  43  ;  Com.  v.  Coe,  ut  supi-a.  An  indict- 
ment stated  that,  by  the  rules  of  a  benefit  society,  every  free  member  was 
entitled  to  five  pounds  on  the  death  of  his  wife,  and  that  the  defendant  falsely 
pretended  that  a  paper  which  he  produced  was  genuine,  and  contained  a  true  ac- 
count of  his  wife's  death  and  burial,  and  that  he  further  falsely  pretended  that 
he  was  entitled  to  five  pounds  from  the  society  by  virtue  of  their  rule,  in  conse- 
quence of  the  death  of  his  wife  ;  by  means  of  which  '  last  false  pretence'  he  ob- 
tained money  ;  this  was  held  good.  R.  v.  Dent,  1  C.  &  K.  249;  infra,  535.  Thus 
if  an  Indictment  for  attempting  to  obtain  money  under  false  pretences  charges  the 
attempt  to  have  been  by  means  of  a  paper  writing  purporting  to  be  an  order  for 
money,  and  the  instrument  cannot  be  considered  as  stated  In  the  Indictment  to  be 
such  an  order.  It  is  bad.  R.  v.  Cartwright,  R.  &  R.  106.  See  fully  Wh.  Cr. 
PI.  &  Pr.  §§  184  e<  seq. 

When  tlie  false  pretences  consist  In  words  used  by  the  respondent,  It  has  been 
said  to  be  sufficient  to  set  them  out  In  the  Indictment  as  they  were  uttered,  with- 
out undertaking  to  explain  their  meaning.  State  v.  Call,  48  N.  H.  126.  See 
Skiff  V.  People,  2  Parker  C.  R.  139.  But  this  must  be  taken  with  some  quali- 
fication, since,  as  In  perjury  and  libel,  it  Is  proper  that  language  otherwise  unin- 
telligible should  be  explained.     See  notes  to  577,  939. 

It  is  not  necessary  to  prove  the  whole  of  the  pretences  charged  ;  proof  of  part, 
and  that  the  property  was  obtained  by  force  of  such  part.  Is  enough.  R.  v. 
Hill,  R.  &  R.  190  ;  R.  v.  Adv,  7  C.  &  P.  140  ;  R.  v.  Hewgill,  Dears.  315  ;  24 
Eng.  L.  &  Eq.  556  ;  R.  v.  English,  12  Cox  C.  C.  171;  State  v.  Mills,  17  Me. 
2lf;  State  v.  Dunlap,  24  Me.  77;  Com.  v.  Morrill,  8  Cush.  571  ;  People  v. 
Stone,  9  Wend.  182;  People  v.  Haynes,  11  Wend.  565;  Skiff?;.  People,  2 
Parker  C.  R.  139;  Com.  v.  Daniel,  2  Pars.  333  ;  Britt  i'.  State,  9  Humph.  31  ; 
Cowen  V.  People,  14  111.  348  ;  State  v.  Vorbeck,  66  JMo.  168  ;  Wh.  Cr.  Ev.  § 
131.  And  the  principle  derives  support  from  the  practice  In  the  analogous  cases 
of  perjurv  and  blasphemy.  Lord  Raym.  886  ;  2  Camp.  138-9  ;  Cro.  C.  C.  7th 
ed.  662;  State  v.  Hascall,  6  N.  H.  352  ;  Com.  v.  Kneeland,  20  Pick.  206  ;  Wh. 
Cr.  L.  8th  ed.  §  1316. 

If  the  effect  of  the  pretences  be  rightfully  laid,  a  variance  as  to  expression  is 
Immaterial.     State  v.  Vanderbilt,  3  Dutch.  328,  and  cases  cited  supra. 

(a)  It  is  necessary  for  the  pleader  to  negative  specifically  the  false  pretences 
relied  on  to  sustain  the  Indictment.  R.  v.  Perrott,  2  M.  &  S.  379  ;  Tyler  v. 
State,  2  Humph.  3  7  ;  Amos.  r.  State,  10  Humph.  117  ;  State  v.  AVebb,  26  Iowa, 
262.  The  negation  must  be  specific.  Keller  f.  State,  51  Ind.  Ill  ;  State  v. 
Bradley,  68  Mo.  140.  But  if  the  proof  be  adequate  as  to  the  offence,  though 
only  coming  up  to  a  portion  of  the  pretence  averred  In  the  indictment,  a  convic- 
tion is  good.    Wh.  Cr.  L.  8th  ed.  §§1218,  1224  ;  R.  v.  Hill,  R.  &  R.  190  ;  Com.  v. 

510 


FALSE   PRETENCES.  (528) 

Morrill,  8  Cush.  571;  People  r.  Stone,  9  Wend.  182;  People  v.  Haynes,  11 
Wend.  5G5  ;  State  v.  Smith,  8  Blackf.  489.  In  fact,  as  is  well  said  by  Lord 
EUenborough,  "to  state  merely  the  whole  of  the  false  pretence  is  to  state  a 
matter  generally  combined  of  some  truth  as  well  as  falsehood."  R.  v.  Perrott, 
ut  supra.  Where,  however,  there  are  several  distinct  pretences,  it  is  better  to 
negative  each  pretence  specifically  in  the  indictment ;  since,  if  only  one  of  the 
pretences  thus  negatived  is  well  laid,  and  is  jiroved  on  trial  to  have  been  the 
moving  cause  of  the  transfer  of  property  from  the  prosecutor  to  the  defendant, 
the  rest  may  be  disregarded.  See  Wh.  Cr.  Ev.  §§  131-3  ;  Wh.  Cr.  L.  8th  ed. 
§  1218. 

(Jj)  The  defendant's  knowledge  of  the  falsity  of  the  pretences  is  material. 
Wh.  Cr.  L.  8th  ed.  §§  1185,  1210^  State  v.  Blauvelt,  38  N.  J.  L.  306.  Thus 
an  indictment  for  obtaining  money  under  false  pretences  must  allege  that  the 
defendant  knew  the  falsehood:  "falsely  and  fraudulently"  is  not  enough.  R. 
V.  Henderson,  2  M.  C.  C.  192;  Car.  &  M.  328.  But  where  the  indictment 
alleged  that  the  defendant  "did  unlawfully  falsely  pretend,"  etc.,  it  was  held 
that  the  omission  of  the  word  "knowingly"  was  no  ground  for  arresting  the 
judgment.  R.  v.  Bowen,  4  New  Sess.  X'as.  G2;  13  Q.  B,  790;  3  Cox  C.  C. 
483.  It  is  more  prudent  to  aver  scienter,  unless  the  pretences  stated  are  of  such 
a  nature  as  to  exclude  the  possible  hypothesis  of  the  defendant's  ignorance  of 
their  falsity.  R.  v.  Philpotts,  1  C.  &  K.  112  ;  R.  v.  Keighley,  Dears.  &  B.  145  ; 
7  Cox  C.  C.  217  ;  Com.  v.  Speer,  2  Virg.  Cases,  65;  State  v.  Bradley,  68  Mo. 
140  ;  though  see  Com.  v.  Hulbert,  12  Met.  446.  See,  as  to  general  pleading  of 
scienter,  Wh.  Cr.  PL  &  Pr.  §  164. 

An  intent  to  defraud  must  be  averred  and  proved.  Wh.  Cr.  L.  8th  ed.  § 
1184;  People  v.  Getchell,  6  Mich.  496  :  Scott  v.  People,  62  Barb.  62.  The 
intent  to  defraud  is  not  sufficiently  set  forth  in  a  statement  that  A.  did  uidawfully 
attempt  and  endeavor  fraudulently,  falsely,  and  unlawfully  to  obtain  from  the 
Agi'icultural  Cattle  Insurance  Company  a  lai-ge  sum  of  money,  to  wit,  £22  IO5., 
"with  intent  to  cheat  and  defraud  the  company.  R.  v.  Marsh,  1  Den.  C.  C.  505  ; 
T.  &  M.  192;  3  New  Sess.  Cas.  699.  That  the  omission  of  the  allegation  of 
intent  is  not  fatal  after  verdict,  under  statute,  see  State  v.  Bacon,  7  Vt.  219  ; 
Jim.  V.  State,  8  Humph.  603.  That  it  is  no  variance  that  the  proof  goes  only 
to  a  part  of  the  monev,  to  which  the  intent  to  defraud  relates,  see  R.  r.  Leon- 
ard, 3  Cox  C.  C.  284;"  1  Den.  C.  C.  304.  By  14  &  15  Vict.  c.  100,  s.  8,  it 
shall  be  sufficient,  in  an  indictment  for  obtaining  property  by  false  pretences,  to 
allege  that  the  defendant  did  the  act  with  intent  to  defraud,  without  alleging  the 
intent  of  the  defendant  to  defraud  any  particular  person.  By  sec.  25,  every 
objection  to  an  indictment  for  any  formal  defect  apparent  on  the  face  thereof 
shall  be  taken  before  the  jury  shall  be  sworn.  It  was  ruled  that  sec.  8  did  not 
render  it  unnecessary,  in  an  indictment  for  obtaining  money  by  false  pretences, 
to  state  whose  property  the  money  was,  and  that  the  omission  was  not  a  formal 
defect  within  sec.  25.  Sill  i\  R.,  Dears.  C.  C.  132  ;  1  El.  &  Bl.  553.  24_&  25 
Vict.  c.  96,  s.  88,  renders  an  allegation  of  ownership  unnecessary.  It  is  not 
necessary,  however,  in  England,  to  state,  to  use  the  language  of  Lord  Denman, 
C.  J.  (li.  V.  Hamilton,  2  Cox.  C.  C.  11  ;  9  Ad.  &  El.  N.  S.  276),  "that  the 
false  pretence  was  made  with  the  intention  of  obtaining  the  thing,  if  it  be  proved 
that  in  fact  the  party  charged  did  intend  to  obtain  the  thing,  made  the  false  pre- 
tence, and  did  thereby  obtain  it.  I  am  by  no  means  sure  that  it  is  necessary 
even  to  prove  that  the  representation  was  made  with  the  particular  intent." 

An  intent  to  defraud  a  firm  necessarily  includes  an  intent  to  defraud  each  of 
its  members,  and  hence  it  is  enough,  when  a  lirm  is  defrauded,  to  aver  an  intent  to 
defraud  a  member  of  the  firm.  Stoughton  v.  State,  2  Ohio  St.  562.  See  Wh. 
Cr.  L.  8th  ed.  §§  743,  1212. 

An  averment  that  A.  "did  receive  and  obtain  the  said  goods  of  said  B.  from 
said  B.  by  means  of  the  false  pretences  aforesaid,  and  witli  intent  to  cheat  and 
defraud  the  said  B.  of  the  same  goods,"  is  a  sufficient  averment  that  the  goods 
•were  designedly  obtained.    Cora.  v.  Hooper,  104  Mass.  549.    But  there  must  be 

511 


(528) 


OFFENCES    AGAINST    PROPERTY. 


a  specific  averment  of  intent  to  defraud  the  prosecutor.     Com.  v.  Dean,   110 
Mass.  64. 

In  this  case  it  was  said  by  Morton,  J.  :  "  The  indictment  does  not  charge  any 
offence  with  the  precision  requisite  in  criminal  pleadings.  There  is  no  sufficient 
allegation  that  the  defendant  obtained  the  signature  of  Sears  to  the  note  with  an 
intent  to  defraud.  The  intent  to  defraud  is  an  essential  element  of  the  crime 
intended  to  be  charged,  and  must  be  distinctly  averred  by  a  proper  affirmative  alle- 
gation, and  not  by  way  of  inference  or  argument  merely.  Com.  v.  Lannan,  1 
Allen,  590. 

"The  concluding  clause,  that  'so  the  jurors  aforesaid,  upon  their  oaths  afore- 
said, do  say  and  present,  that  said  Dean,'  'in  the  manner  aforesaid,  designedly, 
by  a  false  pretence  and  with  intent  to  defraud,  obtained  the  signature  of  said 
Sears,'  is  a  statement  of  a  legal  conclusion  from  the  facts  previously  charged. 
The  conclusion  does  not  follow  from  the  premises.  The  only  allegation  of  an 
intent  to  defraud  is  made  argumentatively,  and  as  a  legal  inference  from  facts 
stated,  and  that  inference  is  unsound.  Com.  v.  Whitney,  5  Gray,  85  ;  R.  v. 
Rushworth,  R.  &  R.  317." 

(c)   "Color"  alone  is  inadequate.     State  i'.  Chunn,  19  Mo.  233. 

{(])  The  property  must  be  distinctly  averred  to  have  been  obtained  by  means 
of  the  pretence.  But  the  process  of  reasoning  by  which  the  conclusion  was 
reached  is  usually  matter  of  argument,  not  of  pleading.  R.  v.  Hamilton,  9  Ad.  & 
El.  (N.  S.)  271  ;  Com.  v.  Hulbert,  12  Met.  446  ;  Com.  v.  Coe,  115  Mass.  481  ; 
State  V.  Hurst,  13  W.  Va.  54.  See  Wh.  Cr.  L.  8th  ed.  §  1 215.  At  the  same  time, 
there  must  always  be  something  sufficient  to  show  that  the  party  defrauded  was 
induced  to  part  with  his  property  by  relying  upon  the  truth  of  the  alleged  false 
statements.  State  v.  Philbrick,  31  Me.  401  ;  Com.  v.  Strain,  10  Met.  521  ; 
Norris  v.  State,  25  Oh.  St.  219;  State  v.  Saunders,  63  Mo.  482.  See  Com.  v. 
Parmenter,  121  Mass.  354;  Epperson  v.  State,  42  Tex.  79;  State  v.  Green,  7 
Wis.  676  ;  State  v.  Orvis,  13  Ind.  569.  And  it  is  not,  as  a  general  rule  (Wh. 
Cr.  L.  8th  ed.  §§  1215,  1216),  enough  to  aver  false  statements  as  to  the  value 
of  property  sold,  and  then  to  aver  the  obtaining  of  money.  A  sale  of  the  prop- 
erty should  be  averred,  as  the  chain  connecting  the  other  averments.  Wh.  Cr.  L. 
8th  ed.  §  1215  ;  see  supra,  note  z,  p.  507. 

In  an  indictment  against  A.,  for  obtaining  goods  from  B.  by  false  pretences,  an 
averment  that  B.  "was  induced,  by  reason  of  the  false  pretences  so  made  as 
aforesaid,  to  purchase  and  receive,  and  did  then  and  there  purchase  and  receive 
of  the  said  A."  certain  property,  "and  to  pay  and  deliver,  and  did  pay  and 
deliver  therefor,  and  as  the  price  thereof,"  certain  goods,  sufficiently  charges  that 
B.  was  induced  by  the  false  pretences  to  pay  and  deliver,  and  that  induced  by 
false  pretences  he  did  pay  and  deliver,  and  is  not  defective  for  not  repeating  the 
words  "then  and  there"  before  the  words  "to  pay  and  deliver,"  or  before  the 
words  "did  pay  and  deliver."      Com.  v.  Hooper,  104  Mass.  549. 

The  allegation  of  "a  sale  on  credit,"  is  supported  by  proof  of  a  sale  for  a  note 
payable  in  four  months.   Com.  v.  Davidson,  1  Cush.  33  ;  Wh.  Cr.  L.  8th  ed.  §  1 180. 

The  indictment  need  not  charge  that  any  false  token  or  counterfeit  letter  was 
used,  even  Avhere  false  token  or  writing  is  alternatively  used  in  the  statute.  Skiff 
V.  People,  2  Parker  C.  R.  139. 

A  delivery  of  the  property  must  be  averred,  as  the  result  of  the  false  pretences, 
in  all  cases  in  which  the  prosecution  rests  upon  such  delivery.  State  v.  Philbrick, 
31  Me.  401  ;  Com.  v.  Strain,  10  Met.  521  ;  Com.  v.  Lannan,  1  Allen,  590  ;  Com. 
V.  Goddard,  4  Allen,  312.  See  also  Com.  v.  Jeffries,  7  Allen,  549;  Com.  v. 
Lincoln,  11  Allen,  233. 

It  is  not  a  fatal  error  that  the  obtaining  of  the  signature  to  a  promissory  note, 
and  the  obtaining  the  money  on  the  same,  are  stated  to  be  on  two  distinct  days. 
Com.  V.  Frey,  50  Penn.  St'  245. 

(e)  The  "obtaining"  must  be  alleged  in  name.  State  v.  Bacon,  7  Vt.  219. 
Obtaining  from  an  agent  is  obtaining  from  a  principal.  Wh.  Cr.  L.  8th  ed.  § 
1128.    "  Knowingly"  and  ' '  designedly, ' '  if  averred  previously,  are  here  surplusage. 

512 


FALSE    PRETENCES.  (529) 

(529)  Form  used  in  Massachusetts. 
That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  being  a  person  of  an  evil 
disposition,  and  devising  and  intending  by  unlawful  ways  and 
means  to  obtain  and  get  into  his  hands  and  possession  the  goods, 
merchandise,  chattels,  and  eftects  of  the  honest  and  good  citizens 
of  this  commonwealth,  and  with  intent  to  cheat  and  defraud  C. 
D.,  etc.,  did  then  and  there  unlawfully,  knowingly,  and  design- 
edly, falsely  pretend  and  represent  to  said  C.  D.  {stating  -pre- 
tences) ;  and  the  said  C.  D.  then  and  there,  believing  the  said 
false  pretences  and  representations,  so  made  as  aforesaid  by  the 
said  A.  B.,  and  being  deceived  thereby,  was  induced,  by  reason 
of  the  false  pretences  and  representations  so  made  as  aforesaid, 
to  deliver,  and  did  then  and  there  deliver,  to  the  said  A.  B. 
{stating  goods)^  of  the  proper  goods,  merchandise,  chattels,  and 
effects  of  said  C.  D.,  and  the  said  A.  B.  did  then  and  there  re- 
ceive and  obtain  the  said  goods,  merchandise,  chattels,  and 
effects  of  the  said  C.  D.,  by  means  of  the  false  pretences  and 
representations  aforesaid,  and  with  intent  to  cheat  and  defraud 
the  said  C.  D.  of  the  same  goods  and  merchandise,  chattels,  and 
effects ;  whereas,  in  truth  and  in  fact  {negativing  the  pretences) ; 

{/)  It  is  generally  necessary  that  the  property  obtained  should  be  described  with 
the  same  accuracy  as  in  larceny.  Com.  i'.  Morrell,  8  Cush.  571  ;  Dord  v.  People, 
9  Barb.  671  ;  State  v.  Kube,  20  Wis.  217  ;  Wh.  Cr.  L.  8th  ed.  §  1221.  AVhere 
a  signature  to  a  note  has  been  obtained  by  false  pretences,  and  the  party  defrauded 
has  been  obliged  to  pay  the  note,  it  is  enough  to  charge  the  sum  paid  to  have 
been  obtained,  etc.,  without  setting  forth  the  obtaining  of  the  signature.  People 
V.  Herrick,  13  AV'end.  87.  A  signature  to  negotiable  paper  must  be  described  as 
such.  State  v.  Blauvelt,  38  N.  J.  L.  396.  And  it  is  enough  to  say  " —  dollars 
of  the  money  and  property  of  A.  B.,"  without  stating  whether  this  money  was  in 
bank  notes,  specie,  etc.     Com.  v.  Lincoln,  11  Allen,  233. 

All  the  property  obtained  need  not  be  set  forth.     AVh.  Cr.  L.  8th  ed.  §  1221. 

At  common  law  the  description  of  the  property  must  be  as  in  larceny.  (See 
notes  to  415.)  Value,  however,  need  not  be  alleged.  People  v.  Stetson,  4  Barb. 
151  ;  State  v.  Gillespie,  80  N.  C.  396  ;  see  Com.  v.  Lincoln,  1 1  Allen,  233  ;  Wh. 
Cr.  PI.  &  Pr.  §  215.  It  is  otherwise  when  punishment  depends  upon  value. 
Ibid.;   State  r.  Ladd,  32  N.  H.  110. 

{(])  The  indictment  must  state  the  goods  to  be  the  property  of  some  person 
named,  and  where  no  owner  is  laid,  the  indictment  will  be  (juashed.  R.  v.  Parker, 
3  A.  &  E.  292  ;  Pv.  v.  Norton,  8  C.  &  P.  196;  II.  v.  Martin,  8  A.  &  E.  481  ;  3 
N.  &  P.  472;  Sill  v.  R.,  Dears.  C.  C.  132,  16  Eng.  L.  &  Eq.  375;  State  v. 
Lathrop,  15  Vt.  279  ;   Wh.  Cr.  L.  8th  ed.  §  1223. 

Distinct  counts  may  lay  distinct  ownerships.     Oliver  r.  State,  37  Ala.  134. 

[h)  It  is  not  necessary,  as  it  has  been  laid  down  in  New  York  and  JMassachu- 
setts,  to  aver  damage  to  the  prosecutor.  People  v.  Genung,  11  Wend.  18  ;  Com. 
V.  Wilgus,  4  Pick.  177. 

Counts  varying  the  pretences  maybe  joined.  Wh.  Cr.  PI.  &  Pr.  §  285  ;  supra, 
note  to  form  2,  p.  31. 

VOL.  I.— 33  513 


(530)  OFFENCES  AGAINST  PROPERTY. 

and  so  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say, 
that  the  said  A.  B.,  by  means  of  the  false  pretences  aforesaid, 
on,  etc.,  at,  etc.,  unlawfully,  knowingly,  and  designedly  did  re- 
ceive and  obtain  from  said  C.  D.  the  said  goods,  merciiandise, 
chattels,  and  effects,  of  the  proper  goods,  merchandise,  chattels, 
and  effects  of  the  said  C.  D.,  with  intent  to  defraud  C.  D.  of  the 
same,  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(580)  Same  in  Neio  York. 
That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  being  a  person  of  an  evil 
disposition,  ill-name  and  fame,  and  of  dishonest  conversation, 
and  devising  and  intending,  by  unlawful  ways  and  means,  to 
obtain  and  get  into  his  hands  and  possession  the  moneys,  valu- 
able things,  goods,  chattels,  personal  property,  and  effects  of  the 
honest  and  good  people  of  the  state  of  New  York,  to  maintain 
his  idle  and  profligate  course  of  life,  on,  etc.,  at,  etc.,  with  intent 
feloniously  to  cheat  and  defraud  one  C.  D.,  did  then  and  there 
feloniously,  unlawfully,  knowingly,  and  designedly,  falsely  pre- 
tend and  represent  to  the  said  C.  D.,  that  {stating  the  jiretences) ; 
and  the  said  C.  D.  then  and  there,  believing  the  said  false  pre- 
tences and  representations,  so  made  as  aforesaid  by  the  said  A. 
B.,  and  being  deceived  thereby,  was  induced,  by  reason  of  the 
false  pretences  and  representations  so  made  as  aforesaid,  to  de- 
liver, and  did  then  and  there  deliver,  to  the  said  A.  B.  {stating 
goods),  of  the  proper  moneys,  valuable  things,  goods,  chattels, 
personal  property,  and  effects  of  the  said  C.  D.,  and  the  said  A. 
B.  did  then  and  there  designedly  receive  and  obtain  the  said, 
etc.,  of  the  said  C.  D.,  of  the  proper  moneys,  valuable  things, 
goods,  chattels,  personal  property,  and  effects  of  the  said  C.  D., 
by  means  of  the  false  pretences  and  representations  aforesaid, 
and  with  intent  feloniously  to  cheat  and  defraud  the  said  C.  D. 
of  the  said,  etc. ;  whereas,  in  truth  and  in  fact,  the  said  {nega- 
tiving pretences) ;  and  whereas,  in  fact  and  in  truth,  the  pretences 
and  representations,  etc,  so  made  as  aforesaid,  by  the  said  A.  B. 
to  the  said  C.  D.,  was  and  were  in  all  respects  utterly  false  and 
untrue,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the  ward, 
city,  and  county  aforesaid ;  and  whereas,  in  fact  and  in  truth, 
the  said  A.  B.  well  knew  the  said  pretences  and  representations, 
so  by  him  made  as  aforesaid  to  the  said  C.  D.,  to  be  utterly  false 
and  untrue  at  the  time  of  making  the  same. 
514 


FALSE    PRETENCES.  (531) 

And  so  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say, 
that  the  said  A.  B.,  by  means  of  tlie  false  pretences  aforesaid, 
on  the  day  and  year  Last  aforesaid,  at  the  ward,  city,  and  county 
aforesaid,  feloniously,  unlawfully,  falsely,  knowingly,  and  de- 
sio;nedly  did  receive  and  obtain  from  the  said  C.  D.,  of  the  pro- 
per moneys,  valuable  things,  goods,  chattels,  personal  property, 
and  eflects  of  the  said  C.  D.,  with  intent  feloniously  to  cheat 
and  defraud  C.  D.  of  the  same,  against,  etc.  {Conclude  as  in 
book  1,  chapter  3.) 

(531)  Pretence  that  defendant  loas  agent  of  a  lottery^  etc.{i) 

That  A.  W.  TV.,  etc.,  on,  etc.,  at,  etc.,  being  a  wicked  and  evil 
disposed  person,  and  a  common  cheat,  and  contriving  and  in- 
tending fraudulently  and  deceitfully  to  cheat  and  defraud  one 
E.  H.  of  his  moneys  and  property,  on,  etc.,  falsely  and  fraudu- 
lently did  knowingly  and  designedly  pretend  to  the  said  E.  H. 
that  his  name  was  H.  C,  that  he  was  an  agent  for  the  managers 
of  a  certain  lottery,  called  The  Maryland  Grand  State  Lottery, 
and  that  he  had  a  number  of  quarters  of  tickets  in  said  lottery, 
and  then  and  there  exhibited  a  great  number  of  quarters  of 
tickets  in  said  lottery,  signed  H.  C,  with  the  numbers  of  the 
original  tickets  in  said  lottery  written  therein,  and  then  and 
there  falsely  and  fraudulently  did  knowingly  and  designedly 
pretend  that  the  said  quarters  of  tickets  were  true  and  genuine, 
and  that  he  had  the  original  tickets  corresponding  with  the 
numbers  of  the  said  quarters  of  tickets  then  deposited  in  a  bank 
in  Boston,  whereas,  in  truth  and  in  fact,  his  true  name  was  A. 
W.  W.,  and  not  H.  C,  as  he  falsely  pretended,  and  in  truth  and 
in  fact  he  was  not,  and  never  was  an  agent  for  the  managers  of 
the  lottery  called  The  Maryland  Grand  State  Lottery,  and  the 
said  quarters  of  tickets  so  exhibited  by  the  said  A.  W.  W.  were 
not  genuine  parts  of  original  tickets  in  said  lottery,  but  were 
spurious  and  fabricated  for  the  sole  purpose  to  deceive,  defraud, 
and  injure,  and  he  had  not  and  never  had  in  his  possession,  nor 
deposited  in  any  bank,  the  original  and  genuine  tickets  corre- 
sponding to  the  numbers  of  said  quarters  of  tickets  so  exhibited 
to  the  said   E.  II.     And  the  jurors  aforesaid,  upon  their  oath 

(i)  See  Com.  v.  Wilgus,  4  Pick.  177,  where  this  count  was  held  good.  Wli. 
Cr.  L.  8th  ed.  §§  1162,  118C. 

515 


(533)  OFFENCES  AGAINST  PROPERTY. 

aforesaid,  do  further  present,  that  the  said  A.  W.  W.,  on  the 
day  and  year  last  aforesaid,  at  said  Cambridge,  in  the  county 
aforesaid,  by  the  false  tokens  and  pretences  aforesaid,  falsely 
and  fraudulently  did  knowingly  and  designedly  obtain  and  get 
into  his  possession  from  the  said  E.  H.  fifteen  dollars,  of  the 
moneys  and  property  of  the  said  E.  H.,  with  the  intent  him  the 
said  E.  H.  then  and  there  to  cheat  and  defraud  of  the  same,  to 
the  great  damage  of  the  said  E.  H.,  in  evil  example  to  others  in 
like  case  to  offend,  against,  etc.,  and  contrary,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

(532)  Obtaining  vfioncy  by  personating  another. 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.,  late  of  B,, 
in  the  county  of  S.,  laborer,  on  the  first  day  of  June,  in  the 
year  of  our  Lord.  at  B.  aforesaid,  in  the  county  aforesaid, 

unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to  E., 
the  wife  of  C.  D.,  that  the  said  A.  B.  was  F.  G.,  and  that  he 
was  the  same  person  that  had  cured  H.  I.;  by  means  of  which 
said  false  pretences  the  said  A.  B.  did  then  and  there  unlawfully, 
knowingly,  and  designedly  obtain  from  the  said  E.  the  sum  of 
five  dollars,  of  the  money  of  the  said  C.  D.,  with  intent  then  and 
there  to  cheat  and  defraud  the  said  C.  D.  of  the  same  ;  whereas, 
in  truth  and  in  fact,  the  said  A.  B.  was  not  F.  G. ;  and  whereas, 
in  truth  and  in  fact,  the  said  A.  B.  was  not  the  same  person 
that  had  cured  H.  I.,  as  the  said  A.  B.  then  and  there  well  knew, 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, etc. 

(533)  Pretence  that  defendant  was  M.  M.,  who  had  cured  Mrs.  C. 
at  the  Oxford  Infirmary^  whereby  he  induced  the  prosecutor 
to  buy  a  bottle  of  ointment,  etc.,  for  lohich  he  received  a  sov- 
ereign, giving  15s.  in  change.{j ) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  did  unlawfully  and  falsely, 
knowingly  and  designedly  pretend  to  one  C,  the  wife  of  G.  P., 
that  he,  the  said  A.  B.,  was  M.  H.,  and  that  he  was  the  same 
person  that  had  cured  Mrs.  C.  at  the  Oxford  Infirmary ;  by  means 

(;")  R.  V.  Bloomfield,  1  C.  &  M.  537.  The  defendant  was  convicted  before 
Crcsswell,  J.,  at  the  sessions,  and  sentence  passed.  See  Wh.  Cr.  L.  8th  ed.  §§ 
1143,  1184,  1200. 

516 


FALSE    PRETENCES.  •  (^34) 

of  which  said  false  pretence,  he  the  said  A,  B.  did  then  and  there 
obtain  from  the  said  G.  P.,  the  husband  of  the  said  C,  P.,  one 
piece  of  the  current  gold  coin  of  this  realm,  called  a  sovereign, 
of  the  moneys,  goods,  and  chattels  of  the  said  Gr.  P.,  with  intent 
then  and  there  to  cheat  and  defraud  him,  the  said  GT.  P.,  of  the 
sum  of  five  shillings,  parcel  of  the  value  of  the  said  last  men- 
tioned piece  of  the  current  gold  coin,  whereas,  in  truth  and  in 
fact,  etc.  {negativing  the  false  pretences^  and  proceeding  as  in 
general  frame). 

(534)  AgaiyiM  a  member  of  a  benefit  club  or  society^  for  obtaining 
money  belonging  to  the  rest  of  the  members,  under  false  pre- 
tences, {h) 

That  on,  etc.,  at,  etc.,  certain  persons  united  together  and 
formed  themselves  into  a  certain  lawful  and  beneficial  club  or 
society,  called,  etc.  {as  the  name  may  be),  under  certain  printed 
articles,  rules,  orders,  or  regulations,  made  for  the  good  order  and 
government  of  the  said  club  or  society  (which  said  articles,  rules, 
etc.,  were  afterwards,  to  wit,  at  the  general  quarter  sessions  of 
the  peace,  holden  at  in  the  county  of  aforesaid,  duly 

exhibited,  confirmed,  and  filed,  according  to  the  statute  in  such 
case  made  and  provided), and  then  and  there,  and  on  divers  other 
days  and  times,  between  that  day  and  the  third  of  May,  in  the 
twenty-ninth  year,  etc.,  contributed  and  paid  divers  large  sums 
of  money,  amounting  in  the  whole  to  a  large  sum  of  money,  to 
wit,  the  sum  of  one  hundred  pounds  and  upwards,  of  lawful 
money,  into  the  said  club  or  society,  and  deposited  the  same  in  a 
certain  box,  left  in  the  dwelling-house  of  one  T.  E-.,  at  K.  afore- 
said, commonly  called  or  known  by  the  name  or  sign  of,  etc.  {as 
it  may  be),  and  there  kept  for  the  use,  benefit,  and  advantage  of 
the  members  of  the  said  club  or  society  at  the  time  being.  And 
the  jurors,  etc.,  do  further  present,  that  in  and  by  a  certain  article 
of  the  said  rules  and  orders  of  the  said  club  or  society,  it  is  de- 
clared, ordered,  and  agreed  that,  etc.  {here  recite  the  article  relat- 
ing to  the  payment  of  money  toinards  the  funerals  of  the  members^ 
toives).  And  the  jurors,  etc.,  that  on  the  same  day  and  year  last 
aforesaid,  at,  etc.,  aforesaid,  one  L.  P.,  late  of,  etc.,  one  A.  B.,  and 

(k)  Dickinson's  Q.  S.  6tli  ed.  33G. 

517 


(534)  OFFENCES  AGAINST  PROPERTY. 

one  C.  D.,  etc.  {here  insert  the  rest  of  the  members'  names  which 
appear  by  the  club  book  to  be  existing  at  this  tiine)^  were  members 
of  the  said  club  or  society,  contributing  and  paying  money  into 
and  for  the  use  of  the  said  club  or  society,  that  is  to  say,  for  the 
general  benefit  and  advantage  of  all  members  thereof,  at  the  said 
house  of  the  said  T.  R.,  for  the  purpose,  amongst  other  things, 
mentioned,  declared,  and  contained  in  the  said  article  above  men- 
tioned and  set  forth.     And  the  jurors,  etc.,  do  further  present, 
that  on,  etc.,  last  aforesaid,  at,  etc.,  aforesaid,  a  large  sum  of 
money,  to  wit,  the  sum  of  one  hundred  pounds  {this  need  not  be 
the  exact  sum,  let  it  be  sometlnng  under  the  sum  contained  in  the 
box  at  this  time),  of  like  lawful  money,  was  and  remained  in  the 
said  box,  kept  for  the  purpose  in  that  behalf  aforesaid,  in  the  said 
house  of  the  said  T,  R,.,  there  before  then  deposited  therein,  by 
and  for  and  on  behalf  of  all  the  members  of  the  said  club  or 
society.     And  the  jurors,  etc.,  do  further  present,  that  by  the 
assent  and  concurrence  of  all  the  members  of  the  said  club  or 
society,  it  had  been  usual  and  customary  during  all  the  time 
aforesaid  (except  the  nights  on  which  the  said  club  or  society 
had  been  there  holden)  for  the  members  of  the  society,  having 
a  right  or  occasion  to  withdraw,  or  receive  any  money  to  which 
they  had  been  entitled  by  the  articles,  rules,  and  orders  of  the 
said  club  or  society,  from  and  out  of  the  said  box,  to  apply  to 
the  said  T.  R.  for  the  payment  of  the  same,  upon  condition  that 
he  the  said  T.  R.  should  be  repaid  the  same  from  and  out  of  such 
money  contained  in  the  said  box,  for  the  juirpose  in  that  behalf 
aforesaid,  on  some  subsequent  night  on  which  the  said  club  or 
society  should  be  holden  at  the  said  house  of  him  the  said  T. 
R.,  at  K.  aforesaid.     And  the  jurors,  etc.,  that  the  said  L.  P., 
to  being  such  member  as  aforesaid,  and  well  knowing  all  and 
singular  the   premises   aforesaid,  on,  etc.,  at,  etc.,  aforesaid,  un- 
lawfully, knowingly,  and   designedly  did  falsely  pretend  to  the 
said  T.  R.  that  the  wife  of  him  the  said  L.  P.  was  then  dead, 
and  that  he  the  said  L.  P.  then  wanted  thirty  shillings  to  bury 
his  said  wife,  by  means  of  which  said  false  pretences  he  the  said 
L.  P.  then  and    there   unlawfully,  knowingly,  and    designedly 
did  obtain  of  and  from  the  said  T.  R.  the  said  sum  of  thirty 
shillings,  with  intent  then  and  there  to  cheat  and  defraud  the 
said  A.  B.,  C.  D.,  etc.  {the  other  members  of  the  club),  of  the  same, 
518 


FALSE    PRETENCES.  (535) 

whereas,  in  truth  and  in  fact,  the  wife  of  him  the  said  L.  P. 
was  not  dead  at  the  said  time  he  so  made  the  false  pretences  to 
the  said  T.  E,.  as  aforesaid  ;  and  whereas,  in  truth  and  in  fact, 
he  the  said  L.  P.,  at  the  time  of  the  false  pretences,  did  not 
want  the  said  sum  of  thirty  shillings,  or  any  sum  of  money 
whatsoever,  for  the  purpose  of  burying  his  wife,  or  of  any  per- 
son whatsoever  having  been  the  wife  of  him  the  said  L.  P., 
against,  etc.,  and  against,  etc.    [Conclude  as  in  book  1,  chapter  3.) 

(535)  Another  form  f 07'  same^  coupled  imth  the  i^roduction  to  the  society 
of  a  false  certificate  of  burial.    First  count.    {In  substance.)(l) 

That  E..  D.,  etc.,  on,  etc.,  at,  etc.,  unlawfully  did  falsely  pre- 
tend to  F.  E.  that  the  wife  of  him  the  said  R.  D.  was  then  dead. 
By  means  of  which  he  obtained  from  the  said  F.  E.  silver  coin 
to  the  amount  of  three  pounds  fifteen  shillings,  of  the  moneys 
of  the  said  F.  E.,  with  intent  to  defraud  F.  E.,  whereas,  in  truth 
and  in  fact,  the  said  wife  of  the  said  R.  D.  was  not  then  dead, 
as  he  the  said  R.  D.  then  well  knew,  etc. 

{The  second  count  was  similar^  only  adding  all  through  it  the 
words  "  and  others"  after  the  name  of  F.  E.) 

Third  count.     {In  fall.) 

That  before  and  at  the  time  of  the  committing  of  the  offence 
in  this  count  mentioned,  to  wit,  etc.,  there  was  a  certain  friendly 
society,  commonly  called  "  The  George  and  Dragon  Friendly 
Society,"  and  that  the  said  R.  D.  was  then  and  there  a  free 
member  of  the  said  society,  and  that  by  the  rules  of  the  said 
society  it  was  amongst  other  things  provided,  that  when  any 
free  member's  wife  dies,  such  member  shall  be  allowed  five 
pounds  out  of  the  society's  stock,  to  wit,  at,  etc. 

(0  R.  V.  Dent,  1  C.  &  K.  249.  After  a  conviction  on  this  indictment,  a  mo- 
tion for  arrest  of  judgment  Avas  refused.  It  appeared  that  tiie  money  of  a  benefit 
society,  whose  rules  were  not  enrolled,  was  kept  in  a  box,  of  which  E.,  one  of 
the  stewards,  and  two  others  had  keys.  Tiie  defendant,  on  the  false  pretence 
that  his  wife  was  dead,  which  pretence  he  made  to  the  clerk  of  the  society  in  the 
hearing  of  E.,  obtained  from  the  hands  of  E.,  out  of  the  box,  £5.  It  was  held, 
that  in  an  indictment  the  pretence  might  be  laid  as  made  to  E.,  and  the  money, 
the  ])roperty  of  "  E.  and  others,"  obtained  from  E.  The  first  count  describes 
the  wife  of  the  defendant,  and  the  third  count  mentions  "the  said  wife"  of  the 
defendant.  It  was  ruled,  that  the  third  count  sufficiently  referred  to  tha  person 
mentioned  as  his  wife  in  the  first  count.     See  Wh.  Cr.  L.  8th  ed.  §§  1212,  1220. 

519 


(535)  OFFENCES  AGAINST  PROPERTY. 

That  before  and  at  the  time  of  the  committing  the  offence  in 
this  count  mentioned,  to  wit,  etc.,  the  said  F.  E.  was  one  of  the 
stewards  of  the  said  society. 

That  the  said  R.  D.,  being  such  member  of  the  said  society  as 

aforesaid,  etc.,  on,  etc.,  at,  etc.,  did  produce  to  the  said  F.  E.,  so 

being  such  steward  as  aforesaid,  a  certain  paper  writing  directed 

to  one  G.  H.  S.  G.,  near  Bristol,  paid  ;   and  which  said   paper 

writing  then  was  in  the  words  and  figures  following,  that  is  to 

say  :— 

"  London,  November  the  8th,  1843. 

"Sir:  I  received  your  letter  this  morning,  and  was  sorry  to 
state  that  we  did  not  send  the  particulars  to  you  in  the  last  let- 
ter we  sent.  She  (meaning  the  said  wife  of  the  said  R.  D.)  died 
October  18th,  and  was  buried  on  Monday,  23d,  at  the  Baptis 
(meaning  Baptist)  Chappell,  in  New  Pye  Street,  Westminster, 
London.  I  hope  this  will  find  you  in  perfect  health,  as  it  leaves 
us  all  at  present.  So  I  conclude,  with  kind  love  to  you  and  all 
her  inquiring  friends.     Please  to  deliver  this  to  Mr.  R.  D. 

"  This  is  to  certify  that  I,  T.  H.  JST.,  atended  (meaning  attended) 
the  funeral  of  M.  D.,  on  the  23d  day  of  October,  being  the  minis- 
ter of  the  Baptist  Chappell,  in  New  Pie  Street,  Westminster, 
London." 

That  the  said  R.  D.,  so  being  such  free  member  of  the  society 
as  aforesaid,  then  and  there  unlawfully,  knowingly,  and  design- 
edly did  falsely  pretend  to  the  said  F.  E.,  so  being  such  steward 
of  the  said  society  as  aforesaid,  that  the  said  paper  writing  was 
a  true,  correct,  and  genuine  paper  writing,  and  that  the  same 
contained  a  true,  correct,  and  genuine  account  of  the  death  of 
the  said  wife  of  the  said  R.  D.,  and  of  her  burial  at  the  Baptist 
Chapel,  in  New  Pye  Street,  Westminster,  London;  and  that  the 
said  R.  D.,so  being  such  free  member  as  aforesaid,  did  then  and 
there  further  unlawfully,  knowingly,  and  designedly  falsely  pre- 
tend to  the  said  F.  E.,  so  being  such  steward  of  the  said  society 
as  aforesaid,  that  the  said  wife  of  the  said  R.  D.  was  then  dead, 
and  that  he  the  said  R.  D.,  as  such  free  member  as  aforesaid,  was 
then  and  there  entitled  to  receive  from  the  stewards  of  the  said 
society  the  sum  of  five  pounds,  under  and  by  virtue  of  the  rules 
of  said  society,  in  consequence  of  the  death  of  his  said  wife. 
By  means  of  which  said  last  mentioned  false  pretence  the  said 
520 


FALSE    PRETENCES.  (536) 

R.  D.  did  then  and  there  unlawfully  obtain  from  the  said  F.  E. 
two  pieces  of  the  current  silver  coin  of  this  realm,  called  crowns 
{describing  silver  and  copper  coins  to  the  amount  of  three  pounds 
fifteen  shillings),  of  the  moneys  of  the  said  F.  E.  and  others, 
with  intent  then  and  there  to  cheat  and  defraud  the  said  F.  E. 
and  others  of  the  same ;  whereas,  in  truth  and  in  fact,  the  said 
paper  writing  was  not  a  true,  correct,  or  genuine  paper  waiting; 
and  whereas,  in  truth  and  in  fact,  the  said  paper  did  not  contain 
a  true,  correct,  or  genuine  account  of  the  death  of  the  said  wife 
of  the  said  R.  D.,  or  of  her  burial  at  the  Baptist  Chapel,  New 
Pye  Street, "Westminster,  London;  and  whereas,  in  trnth  and  in 
fact,  the  said  wife  of  the  said  R.  D.  was  not  then  dead  ;  and 
whereas,  in  truth  and  in  fact,  the  said  R.  D.  as  such  free  mem- 
ber as  aforesaid,  was  not  then  entitled  to  receive  from  the  stew- 
ards of  the  said  society  the  sum  of  five  pounds,  or  any  other 
sum  whatever,  under  and  by  virtue  of  the  said  rules  of  the  said 
society,  in  consequence  of  the  death  of  his  said  wife. 

That  the  said  R.  D.  well  knew,  at  the  time  when  he  did  so 
falsely  pretend  as  last  aforesaid,  that  each  and  every  of  the  said 
pretences  were  false,  to  wit,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  against,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(536)  Pretence  that  a  broken  bank  note  was  good.{m) 

That  J.  S.,  etc.,  on,  etc.,  at,  etc.,  being  a  person  of  evil  dispo- 
sition, and  contriving  and  intending  unlawfully,  fraudnlently, 
and  decitfuliy  to  cheat  and  defraud  one  II.  S.  G.,  an  honest  and 
worthy  citizen  of  the  commonwealth,  on,  etc.,  did  falsely,  know- 
ingly, unlawfully,  and  designedly  pretend  to  the  said  II.  S.  G. 
that  a  certain  note,  partly  written  and  partly  printed,  which  he 
the  said  J.  S.  then  and  there  produced  and  delivered  to  the  said 
H.  S.  G.,  and  which  said  note  was  and  is  as  follows,  that  is  to 
say  {here  set  out  note),  was  a  good  and  valuable  promissory'  note 
for  the  payment  of  money,  called  a  bank  note,  issued  hy  the 
Commercial  Bank  of  Millington,  and  that  the  said  Commercial 
Bank  of  Millington  was  a  good  and  solvent  bank  ;  by  means  of 

(m)  This  form  is  given  by  Judge  Lewis,  Criminal  Law,  p.  C47.  See  R.  v. 
Philpotts,  1  C.  &  K.  112;  R.  v.  Barnard,  7  C.  &  P.  784;  R.  v.  Spencer,  3  C. 
&  P.  420  ;  and  see  also  particularly,  note  to  526. 

521 


(537)  OFFENCES   AGAINST    PROPERTY. 

which  said  false  pretences  the  said  J.  S.  did  then  and  there  un- 
lawfully obtain  from  the  said  H.  S.  G.  one  riile,  of  the  value  of 
nine  dollars,  lawful  money,  of  the  property  of  him  the  said  H. 
S.  G.,  and  one  dollar,  lawful  money,  of  the  moneys  of  him  the 
said  H.  S,  G.,  with  intent  to  cheat  and  defraud  him,  the  said  H. 
S.  G.,  of  the  same.  Whereas,  in  truth  and  in  fact,  the  said 
promissory'  note  for  the  payment  of  money,  called  a  bank  note, 
issued  by  the  Commercial  Bank  of  Millington,  was  not  a  good 
and  valuable  promissory  note  for  the  payment  of  money,  and 
was  of  no  value  Avhatever.  And  whereas,  in  truth  and  in  fact, 
the  said  Commercial  Bank  of  Millington  was  not  a  good  and 
solvent  bank,  which  he  the  said  J.  S.  then  and  there  at  the  time 
of  the  false  pretences  aforesaid  well  knew,  to  the  great  damage 
and  deception  of  the  said  H.  S.  G.,  to  the  evil  example  of  all 
others  in  like  case  offending,  contrary,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(537)  Pretence  that  a  flash  note  loas  good.{n) 

That  A.  B.,  etc.,  on,  etc.,  at  B.  aforesaid,  in  the  county  afore- 
said, unlawfully,  knowingly,  and  designedly  did  falsely  pretend 
to  C.  D.  that  a  certain  printed  paper  then  produced  by  the  said 
A.  B.  and  offered  and  given  by  him  to  the  said  C.  D.  in  payment 
for  certain  pigs,  before  then  agreed  to  be  sold  by  the  said  C.  D. 
to  the  said  A.  B.,  was  a  good  and  valid  promissory  note  for  the 
payment  of  fifty  dollars,  by  means  of  which  said  false  pretence 
the  said  A.  B.  did  then  and  there  unlawfull}^,  knowingly,  and 
designedly  obtain  from  the  said  C.  D.  five  pigs,  of  the  value  of 
five  dollars  each,  and  certain  money,  to  wit,  the  sum  of  twenty- 
five  dollars,  of  the  goods,  chattels,  and  mone3's  of  the  said  C.  D., 
with  intent  then  and  there  to  cheat  and  defraud  the  said  C.  D. 
of  the  same.  Whereas,  in  truth  and  in  fact,  the  said  printed 
paper  was  not  a  good  and  valid  promissory  note  for  the  pay- 
ment of  the  sum  of  fifty  dollars,  or  for  the  payment  of  any 
sum  whatever,  as  the  said  A.  B.  then  and  there  well  knew  ; 
contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, etc.      {Conclude  as  in  book  1,  chapter  3.) 

{n)  R.  V.  Coulson,  1  Den.  C.  C.  592  ;   1   Temp.  &  Mew,   C.  C.  592 ;  4  Cox, 
C.  C.  227.     See  Wh.  Cr.  L.  8th  ed,  §§  1162,  1164,  1217,  1233. 
522 


FALSE    PRETENCES.  (539) 

(538)  Pretence  that  a  worthless  check  or  order  ivas  good.{o) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  being  a  person  of  a  deceitful 
and  subtle  mind  and  disposition,  and  intending  to  cheat  and  de- 
fraud one  W.  M.,  did  unlawfully,  falsely,  and  wickedly  pretend 
to  the  said  W.  M.  that  a  certain  paper  writing,  which  he  the 
said  defendant  then  and  there  produced  to  the  said  W.  M., 
and  which  was  as  follows  : — 

"  £25.  6th  January,  1837. 

To  Messrs.  S.  &  Co.,  bankers,  Bristol.  Pay  the  bearer  twenty- 
five  pounds.  R.  C.  C.  S.  P." 
was  a  good  and  genuine  order  for  tlie  payment  of  the  said 
twenty-five  pounds,  and  of  the  value  of  twenty-five  pounds; 
whereas,  in  truth  and  fact  {negativing  the  pretence)^  which  he  the 
said  defendant  then  and  there  well  knew,  by  means  of  which 
said  false  pretence,  etc.  {stating  the  thing  obtained). 

(539)  Another  form  for  same. 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  did  go  to  a  certain  shop  of 
one  B.  M.  there  situate,  and  then  and  there  unlawfully,  know- 
ingly, and  designedly  did  fiilsely  pretend  to  the  said  B.  M.,  that, 
if  he,  the  said  B.  M.,  would  send  a  pair  of  candlesticks  of  hira 
the  said  B.  M.  (which  the  said  B.  M.  then  showed  to  the  said 

A.  B.),  the  next  day  to  him,  the  said  A.  B.,  to  liis  lodgings  at, 
etc.,  with  a  bill  and  receipt,  he  the  said  A.  B.  would  pay  for 
them  upon  the  delivery,  by  giving  said  B.  M.  an  order  for  the 
payment  of  money,  which  he  the  said  A.  B.  then  and  there  falsely 
pretended  was  in  his  possession,  by  means  of  which  said  false 
pretence  he  the  said  A.  B.,  afterwards,  to  wit,  on,  etc.,  aforesaid, 
at,  etc.,  aforesaid,  unlawfully,  knowingly,  and  designedly  did 
obtain  from  the  said  B.  M.  one  pair  of  candlesticks,  of  the  value 
of,  etc.,  of  the  goods,  wares,  and  merchandises  of  him  the  said 

B.  M.,  with  intent  then  and  there  to  cheat  and  defraud  him  of 
the  same  ;  whereas,  in  truth  and  in  fact,  when  he  the  said  B.  M., 
on  the  da}'  and  year  aforesaid,  sent  the  said  goods,  etc.,  to  the 
said  lodgings  of  him  the  said  A.  B.,at,  etc.,  aforesaid,  with  a  bill 

(o)  R.  V.  Parker,  7  C.  &  P.  825.  Tliis  is  tlie  substance  of  the  fourtli  count  in 
this  ease,  on  which  a  majority  of  the  judges  held  the  conviction  right. 

523 


(539)  OFFENCES    AGAINST    PROPERTY. 

and  receipt,  he  the  said  A.  B.  did  not  pay  for  them  upon  the 
delivery  by  a  valid  order  for  the  payment  of  money  or  otherwise, 
but  did  then  and  there  unlawfully,  knowins^ly,  designedly,  fraud- 
ulently, and  deceitfully  deliver  to  W.  J.,  a  servant  of  him  the 
said  B.  M,,  sent  by  the  said  B.  M.  to  the  said  A.  B.  with  the 
said  goods,  etc.,  and  who  delivered  the  same  to  him  with  a  bill 
and  receipt,  a  certain  paper  w^riting,  purporting  to  be  an  order 
for  the  payment  of  money,  siihscribed  A.  -B.,  purporting  to  bear 
date  the,  etc.,  and  to  be  directed  to  P.  and  Q.,  bankers  and  part- 
ners, by  the  name  and  description  of,  etc.,  for  the  payment  of, 
etc.,  to  Messrs.  R.  and  M.,or  bearer,  he  the  said  A.  B.  then  and 
there  well  knowing{p)  the  same  to  be  of  no  value,  and  that  the 
same  would  not  be  paid.  And  whereas,  in  truth  and  in  fact,  the 
said  A.  B.  had  not,  at  the  time  of  the  false  pretence  aforesaid, 
in  his  possession  or  power,  any  valid  order  for  the  payment  of 
money  whatsoever,  against,  etc.,  and  against,  etc.  (Conclude  as 
in  book  1,  chapter  3.) 

Second  count. 

And  the  jurors,  etc.,  that  the  said  A.  B.,  on,  etc.,  did  fraudu- 
lently inform  and  promise  the  said  B.  M.,  that  if  he  the  said  B. 
M.  would  send  a  pair  of  candlesticks  of  the  said  B.  M.,  which  he 
the  said  B.  M.  then  showed  to  the  said  A.  B.,  the  next  day  to 
him  the  said  A.  B.  to  his  lodgings  at,  etc.,  with  a  bill  and  receipt, 
he  the  said  A.  B.  would  pay  for  them  upon  the  delivery.  And 
the  jurors,  etc.,  that  the  said  A.  B.  did  then  and  there,  to  wit, 
on,  etc.,  at,  etc.,  deliver  to  W.  J.,  then  being  the  servant  of  the 
said  B.  M.,  and  then  having  the  said  candlesticks  in  his  posses- 
sion, a  certain  paper  writing,  purporting  to  be  an  order  for  pay- 
ment of  money,  subscribed,  etc.  {as  in  last  count),  and  then  and 
there  unlawfully,  knowingly,  and  designedly  did  falsely  pretend 
to  the  said  W.  J.  that  he,  the  said  A.  B.,  then  kept  cash  with 
the  said  P.  and  Q.,  and  that  they  were  then  his  bankers,  and  that 
the  sum  of,  etc.,  mentioned  in  the  said  paper  writing,  purporting 
to  be  an  order  for  payment  of  money,  would  be  duly  paid  by 
tjiem ;  by  means  of  which  said  last  mentioned  false  pretences, 

[p)  It  must  be  shown  to  be  A.  B.'s  handwriting,  and  that  he  knew  it  to  be 
•worthless.  Wickham  v.  R.  (in  error),  10  A.  &  E.  34  ;  2  Per.  &  Da.  333,  S.  C.  ; 
R.  V.  Philjjotts,  C.  &  K.  112.     See  R.  v.  Jackson,  Dickinson's  Q.  S.  332,  n. 

524 


FALSE    PRETENCES.  (539a) 

the  said  A.  B.  did  then  and  there,  to  wit,  at,  etc.,  unlawfully, 
knowingly,  and  designedly  obtain  from  the  said  W.  J.  one  pair 
of  candlesticks,  of  the  value,  etc.,  the  goods,  etc.,  of  the  said  B. 
M.,  with  intent  then  and  there  to  defraud  him  of  the  same; 
whereas,  in  truth  and  in  fact,  the  said  A.  B.  did  not  then  keep 
cash  with  P.  and  Q.,  nor  were  they  then  his  bankers,  nor  was 
the  sum  of,  etc.,  mentioned  in  the  said  paper  writing,  purporting 
to  be  an  order  for  payment  of  money,  duly  paid  by  them,  nor  hath 
the  same,  or  any  part  thereof  been  paid  by  them,  or  him  the  said 
A.  B.,  or  any  person  or  persons  whomsoever ;  and  whereas,  in 
truth  and  in  fact,  the  said  A.  B.  then  and  there  well  knew  that 
the  said  paper  writing,  purporting  to  be  an  order  for  payment 
of  money,  was  of  no  value,  and  was  fabricated  by  him  on  pur- 
pose to  cheat  and  defraud  the  said  A.  B.,  and  that  the  sum  of 
money  therein  mentioned  would  not  be  paid,  against,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(539a)  Pretence  that  a  certificate  of  stock  was  genuine. 

That  the  defendant  at,  etc.,  on,  etc.,  being  a  person  of  an  evil 
disposition,  and  devising  and  intending  by  unlawful  ways  and 
means  to  obtain  and  get  into  his  hands  and  possession  the  goods, 
merchandise,  chattels,  and  eftects  of  the  honest  and  good  citi- 
zens of  this  commonwealth,  and  with  intent  to  cheat  and  defraud 
one  J.  F.,  and  with  the  view  and  intent  to  effect  the  loan  here- 
inafter mentioned,  did  then  and  there  unlawfully,  knowingly, 
and  designedly  falsely  pretend  and  represent  to  said  J.  F.  that  a 
certain  paper  writing  and  certificate  which  he,  the  said  C.,then 
and  there  had  and  produced  to  said  F.,  and  which  was  of  tenor 
following,  to  wit : — 
"  No,  59.  Eastern  Eailroad  Company.  100  shares. 

"  Be  it  known,  that  J.  F.,  of  Boston,  is  a  proprietor  of  one  hun- 
dred shares  in  the  capital  stock  of  the  Eastern  Railroad  Company, 
subject  to  all  assessments  thereon,  and  to  the  provisions  of  the 
charter  and  the  by-laws  of  the  corporation,  the  same  being  trans- 
ferable by  an  assignment  thereof  in  the  books  of  the  corporation, 
or  by  a  conveyance  in  writing  recorded  in  said  books  ;  and  when 
a  transfer  shall  be  made  or  recorded  in  the  books  of  the  corpora- 

525 


(539«)  OFFENCES    AGAINST    PROPERTY. 

tion,  and  this  certificate  surrendered,  a  new  certificate  or  certifi- 
cates will  be  issued. 

"Dated  at  Boston,  this  third  day  of  January,  A.D.  1873. 
[seal]  Thornton  K.  Lothrop, 

President. 
John  B.  Parker, 

Treasurer^''^ 
was  then  and  there  a  good,  valid,  and  :^enuine  certificate  of  own- 
ership of  stock  in  said  company,  lawfully  and  duly  issued  and 
signed  by  said  L.  and  P.,  and  was  then  and  there  of  the  value 
of  ten  thousand  dollars.  And  the  said  F.  then  and  there,  believ- 
ing the  said  false  pretences  and  representations,  so  made  as  afore- 
said by  the  said  C,  and  being  deceived  thereby,  was  induced,  by 
reason  of  the  false  pretences  and  representations  so  made  as 
aforesaid,  to  loan  and  deliver,  and  did  then  and  there  loan  and 
deliver  to  the  said  C,  upon  the  security  and  pledge  of  the  said 
certificate,  then  and  there  by  said  C.  delivered  to  said  F.  as  such 
security  for  said  loan,  the  sum  of  seven  thousand  dollars,  one 
check  and  order  for  the  payment  of  money  of  the  value  of  seven 
thousand  dollars,  one  piece  of  paper  of  the  value  of  seven  thou- 
sand dollars,  of  the  proper  moneys,  goods,  merchandise,  chattels, 
and  effects  of  said  F.  And  the  said  C.  did  then  and  there  receive 
and  obtain  the  said  moneys,  goods,  merchandise,  chattels,  and 
efi'ects  of  the  said  F.  as  such  loan,  by  means  of  the  false  pretences 
and  representations  aforesaid,  and  with  intent  to  cheat  and  de- 
fraud the  said  F.  of  the  same  moneys,  goods,  and  merchandise, 
chattels,  and  efl:ects.  "Whereas,  in  truth  and  in  fact,  said  writing 
and  certificate  was  not  tlien  and  there  a  good,  valid,  and  genuine 
writing  and  certificate  of  ownership  of  stock  in  said  company, 
duly  and  lawfully  issued  and  signed  by  said  L.  and  P.,  but  was 
then  and  there  a  false,  forged  and  counterfeit  writing  and  cer- 
tificate, and  was  not  then  and  there  of  the  value  of  ten  thousand 
dollars,  but  was  then  and  there  of  no  value,  all  of  which  he  the 
said  C.  then  and  there  well  knew.  And  so  the  jurors  aforesaid, 
upon  their  oaths  aforesaid,  do  saj^that  the  said  C,  by  means  of 
the  false  pretences  aforesaid,  on,  etc.,  at,  etc.,  unlawfully,  know- 
ingly, and  designedly  did  receive  and  obtain  from  tlie  said  F. 
the  said  moneys,  goods,  merchandise,  chattels,  and  effects,  of  the 
proper  moneys,  goods,  merchandise,  chattels,  and  efleets  of  the 
526 


FALSE    PRETENCES.  (5"^0) 

said  F.,  with  intent  to  defraud  him  of  the  same,  against,  etc.(5') 
{Conclude  as  in  book  1,  chapter  3.) 

(540)  Obtaining  goods  by  check  on  a  bank  where  the  defendant  had 

no  effects. {r) 

That  A.  B.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid,  in 

the  county  aforesaid,  unlawfully,  knowingly,  and  designedly  did 
falsely  pretend  to  C.  D.  that  a  certain  paper  writing  produced 
by  the  said  A.  B.  to  the  said  C.  D.,  and  purporting  to  be  a  check 
drawn  by  the  said  A.  B.  upon  E.  F.  and  Company,  bankers,  for 
the  payment  to  the  bearer  of  the  sum  of  one  hundred  dollars, 
was  then  and  there  a  good,  genuine,  and  available  order  for  pay- 
ment of  the  sum  of  one  hundred  dollars,  and  was  then  and  there 
of  the  value  of  one  hundred  dollars,  which  said  check  is  of  the 
tenor  following,  that  is  to  say,  etc. ;  and  that  the  said  A.  B.  kept 
an  account  with  the  said  E.  F.  and  Company,  and  that  the  said 
A.  B.  had  money  in  the  hands  of  the  said  E.  F.  and  Company 
for  the  payment  of  the  said  check,  and  that  the  said  A.  B.  had 
full  power,  right,  and  authority  to  draw  checks  upon  the  said 
E.  F.  and  Company,  by  means  of  which  said  false  pretences  the 
said  A.  B.  did  then  and  there  unlawfully,  knowingly,  and  design- 
edly obtain  from  the  said  C.  D.  a  gold  watch,  of  the  value  of 
seventy-five  dollars,  and  a  gold  chain  of  the  value  of  twenty- 
five  dollars,  of  the  goods  and  chattels  of  the  said  C.  B.,  with 
intent  then  and  there  to  cheat  and  defraud  the  said  C.  D.  of  the 
same.  Whereas,  in  truth  and  in  fact,  the  said  paper  writing 
was  not  then  and  there  a  good,  genuine,  and  available  order  for 
payment  of  the  sum  of  one  hundred  dollars,  nor  was  the  same 
then  and  there  of  the  value  of  one  hundred  dollars  ;  and  whereas, 
in  truth  and  in  fact,  the  said  A.  B.  did  not  keep  any  account 
with  the  said  E.  F.  and  Company  ;  and  whereas,  in  truth  and  in 
fact,  tlie  said  A.  B.  had  not  any  money  in  the  hands  of  the  said 
E.  F.  and  Company  for  the  payment  of  tiie  said  check ;  and 

[q)  Sustained  in  Com.  v.  Coe,  115  Mass.  481.  See  Wh.  Cr.  L.  8tli  ed.  ^§ 
887,  1176,  1184,  1186,  1196,  1221. 

(r)  See  R.  v.  Jackson,  3  Campbell,  370;  6  Cox,  C.  C.  Appendix,  page  1. 
"  This  indictment  is  frained  with  reference  to  Rex  v.  Parker,  2  JNIoody,  C.  C.  1  ; 
7  Carrington  &  Payne,  825  ;  and  Mr.  Greaves's  note  in  his  edition  of  Russell  on 
Crimes,  vol.  ii.  p.  300,  note  (/)."     lb. 

527 


(540«)  OFFENCES   AGAINST   PROPERTY. 

whereas,  in  truth  and  in  fact,  the  said  A.  B.  had  not  any  power, 
right,  or  authority  to  draw  checks  upon  the  said  E.  F.  and  Com- 
pany, as  the  said  A.  B.  then  and  there  well  knew ;  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided. 

(540«)  Pretence  of  authority  to  draw  a  certain  cheque,  etc. 

The  jurors  for,  etc.,  upon  their  oath  present,  that  B.  F.  P. 
did,  on,  etc.,  unlawfully,  knowingly,  and  designedly  falsely  pre- 
tend to  H.  H.  and  C.  11.,  carrying  on  business  in  partnership  as 
tailors,  under  the  name  and  style  of  Messrs.  11.  Brothers,  that 
he,  the  said  B.  F.  P.,  had  authority  to  draw  a  certain  cheque,  to 
wit,  a  cheque  for  the  sum  of  £10  sterling,  upon  the  W.  and  D. 
Banking  Company  in,  etc.,  and  that  a  sum  of  £10  sterling,  belong- 
ing to  him,  the  said  B.  F.  P.,  was  then  in  the  possession  of  the 
said  banking  company,  and  that  a  sum  of  £10  sterling  was  then 
payable  and  could  be  paid  by  the  said  banking  company  on  the 
credit  and  on  the  account  of  the  said  B.  F.  P.,  as  soon"  as  an 
order  in  writing,  signed  by  the  said  B.  F.  P.,  authorizing  the 
said  banking  company  to  make  such  payment,  should  be  pre- 
sented at  the  place  of  business  of  the  said  banking  company  at, 
etc. ;  and  that  a  certain  paper  writing,  in  the  proper  hand- 
writing of  the  said  B.  F.  P.,  was  a*good  and  valid  order  for  the 
payment  of  £10  sterling,  and  of  the  value  of  £10  sterling,  and 
that  a  certain  banker's  cheque,  bearing  a  stamp  of  Id.,  and  tilled 
up  for  a  sum  of  £10  sterling,  was  a  good  and  valid  security  for 
the  sum  of  £10  sterling,  and  of  the  value  of  <£10  sterling  ;  and 
that  a  certain  cheque,  which  was  then  written  and  made  by 
the  said  B.  F.  P.  upon  one  of  the  printed  and  stamped  forms  of 
the  W.  and  D.  Banking  Company,  and  which  said  cheque  was 
addressed  to  the  said  banking  compan}^,  at  their  place  of  busi- 
ness in,  etc.,  and  which  said  cheque  purported  to  be  an  order 
upon  the  said  banking  company  to  pay  to  him,  the  said  B.  F. 
P.,  and  any  indorsee  of  him,  the  said  B.  F.  P.,  the  sum  of  £10 
sterling,  and  which  said  cheque  was  indorsed  by  the  proper  sig- 
nature of  him,  the  said  B.  F.  P.,  was  a  valuable  security,  to 
wit,  an  order  for  the  payment  of  £10  sterling,  and  of  the  value 
of  £10  sterling;  by  means  of  which  said  false  pretences  the  said 
B.  F.  P.  did  then  and  there  unlawfully  obtain  from  the  said 
firm  of  Messrs.  H.  Brothers  the  sum  of  £10  in  money,  of  the 
528 


FALSE   PRETENCES.  (541) 

moneys  of  the  said  Messrs.  H.  Brothers,  with  intent  thereby- 
then  to  defraud ;  whereas,  in  truth  and  in  fact,  the  said  B.  F. 
P.  "had  not  any  authority  to  draw  the  said  cheque  upon  the 
said  banking  company  for  the  sum  of  £10,  or  any  other  cheque 
for  any  sum  of  money  wliatsoever  ;  and  whereas,  in  truth  and 
in  fact,  the  said  banking  companjT^  had  not  then  in  their  pos- 
session a  sum  of  £10  sterling  belonging  to  the  said  B.  F,  P.,  or 
any  other  sum  of  money  whatsoever ;  and  whereas,  in  truth 
and  in  fact,  a  sum  of  £10  sterling  was  not  then  payable  by  said 
banking  company  upon  the  order  of  the  said  B.  F.  P.,  or  any 
other  sum  of  money  whatsoever;  nor  could  £10  sterling,  or  any 
other  sum  of  money,  be  paid  by  the  said  banking  company 
upon  the  credit  and  account  of  the  said  B.  F.  P.  when  any  writ- 
ten order  of  the  said  B.  F.  P.  was  presented  to  the  said  banking 
company ;  and  whereas,  in  truth  and  in  fact,  the  said  paper 
writing  was  not  a  good  and  valid  order  for  the  payment  of  £10 
sterling,  and  was  not  of  the  value  of  £10,  but,  on  the  contrary, 
was  invalid,  and  not  of  any  value  whatsoever;  and  whereas,  in 
truth  and  in  fact,  the  said  banker's  cheque  was  not  a  good  and 
valid  security  for  the  sum  of  £10  sterling,  or  any  other  sum 
whatsoever,  and  was  not  of  the  value  of  £10  sterling,  or  of  any 
other  sum  whatsoever ;  and  whereas,  in  truth  and  in  fact,  the 
said  cheque  so  written,  made,  and  indorsed  by  the  said  B.  F.  P., 
was  not  a  valuable  security,  and  was  not  of  the  value  of  £10 
sterling,  but,  on  the  contrary,  was  not  of  any  value  whatsoever; 
as  he,  the  said  B.  F.  P.,  then  and  there  well  knew;  to  the  great 
damage  and  disgrace  of  the  said  Messrs.  H.  Brothers,  against, 
etc.     (Conclude  as  in  book  1,  cJuqAer  3.) 

(Here   follow   three    additional    counts,  varying   the   state- 
ment.) (s) 

(541)  Pretence  that  defendant  was  the  agent  of  A.  B.,  and  as  such 
had  been  sent  by  A.  B.  to  G.  D.,  to  receive  certain  money  due 
from  the  latter  to  the  former. {t) 

That  F.  C,  etc.,  on,  etc.,  at,  etc.,  being  a  person  of  an  evil  dis- 
position, and  devising  and   intending   by  unlawful  ways  and 

(s)  11  Cox,  C.  C.  App.  xi. 

(<)  This  form  was  sustained  in  Com.  v.  Call,  21  Pick.  515.     Morton,  J.,  said: 
"  But  without  stopping  to  inquli'c  whether  such  an  indictment  would  be  good  at 

VOL.  I.— 34  529 


(541)  OFFENCES   AGAINST    PROPERTY. 

means  to  obtain  and  get  into  his  hands  and  possession  the 
goods,  merchandise,  chattels,  and  eftects  of  the  honest  and  good 
citizens  of  this  commonwealth,  and  with  intent  to  cheat  and 
defraud  one  A.  W.  and  one  Gr.  S.  of  their  money,  did  then  and 
there  unlawfully,  knowingly,  and  designedly  falsely  pretend  and 
represent  to  one  C.  A.  P.,  a  person  who  owed  a  sura  to  said  W. 
and  S.,  to  wit,  the  sum  of  eleven  dollars  and  sixty-three  cents, 
that  the  said  C.  then  and  there  was  an  authorized  collector  and 
a  servant  of  said  W.  and  S.,  that  said  W.  and  S.  had  employed 
and  sent  him  to  collect  and  receive  for  them  said  sum  of  money 
so  due  as  aforesaid,  and  owed  by  the  said  C.  A.  P.  to  them. 
And  the  said  C.  A.  P.,  then  and  there  believing  the  said  false 
pretences  and  representations  so  made  as  aforesaid  by  the  said 
C,  and  being  deceived  thereby,  was  induced,  by  reason  of  the 
false  pretences  and  representations  so  made  as  aforesaid,  to  de- 
liver, and  did  then  and  there  deliver,  to  the  said  F.  C,  the  sum 
of  eleven  dollars  sixty-three  cents,  due  and  owing  from  him  said 
P.,  to  said  W.  and  S.,  of  the  proper  money  and  effects  of  said 
P.  due  and  owing  as  aforesaid  to  said  W.  and  S.,  and  the  said 
C.  did  then  and  there  receive  and  obtain  the  said  money  and 
effects  of  the  said  P.,  due  and  owing  as  aforesaid  to  said  "W". 
and  S.,  by  means  of  the  false  pretences  and  representations  afore- 
said, and  with  the  intent  to  cheat  and  defraud  the  said  P.  and 
said  W.  and  S.  of  the  same  money  and  effects  ;  whereas,  in  truth 
and  in  fact,  said  F.  C.  then  and  there  was  not  an  authorized 
collector  and  a  servant  of  said  W.  and  S.,  and  the  said  W.  and 
S.  had  not  then  and  there  employed  and  sent,  and  did  not  then 
and  there  employ  and  send,  said  C.  to  collect  and  receive  for 
them  said  sum  of  money  so  due  and  owing  as  aforesaid  from 
said  C.  A.  P.  to  them,  but  had  forbidden  said  C.  to  collect  any 
money  and  receive  any  for  them,  and  had  long  before  turned  him 

common  law  or  not,  we  are  all  satisfied  that  this  is  a  good  indictment  under  the 
statute. 

"The  grammatical  and  critical  objections,  however  ingenious  and  acute  they 
may  be,  cannot  prevail.  The  age  has  gone  by  when  bad  Latin  or  even  bad  Eng- 
lish, so  it  be  sufficiently  intelligible,  can  avail  against  an  indictment,  declaration, 
or  plea.  The  passage  objected  to  may  be  somewhat  obscure,  but,  by  a  reference 
to  the  context,  is  capable  of  a  pretty  certain  interpretation.  The  pronoun  them 
must  be  referred  to  that  antecedent  to  which  the  tenor  of  the  instrument  and  the 
principles  of  law  require  that  it  should  relate,  whether  exactly  according  to  the 
rules  of  syntax  or  not." 

530 


FALSE    PRETENCES.  (5416) 

out  of  their  employment ;  and  so  the  jurors  aforesaid,  upon  their 
oath  aforesaid,  do  say,  that  the  said  F.  C,  by  means  of  the  false 
pretences  aforesaid,  on,  etc.,  at,  etc.,  unlawfully,  knowingly,  and 
designedly  did  receive  and  obtain  from  said  C.  A.  P.  said  sum 
of  eleven  dollars  and  sixty-three  cents,  being  the  said  money  due 
and  owing  as  aforesaid,  and  eftects  of  the  proper  money  and 
eiiects  of  the  said  P.,  due,  owing,  and  payable  to  said  W.  and 
S.,  with  intent  to  defraud  them  of  the  same,  against,  etc.,  and 
contrary,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(541a)  Pretence  that  defendant  had  been  sent  to  obtain  certain  goods. 

That  J.  M.,  etc.,  "falsely  pretended  to  E.  S.,  with  intent  to 
defraud,  that  he,  the  said  J.  M.,  had  been  sent  by  E.  M.  to  him, 
the  said  E.  IS.,  to  get  a  violin,  tenor  horn,  and  a  B-flat  horn  for 
the  said  E.  M.  ;  and  by  means  of  such  false  pretence  obtained 
from  the  said  E.  S.  one  violin,  one  tenor  horn,  and  one  B-flat 
horn  of  the  value  of  ten  dollars;  whereas,  etc.,  against,"  etc.(w) 
{Conclude  as  in  book  1,  chapter  3.) 

(5416)  Falsely  pretending  that  defendant  acted  as  broker  for  an 
un disclosed  principal. {v) 

That  A.  B.,  etc.,  at,  etc.,  on,  etc.,  with  intent  to  cheat  and 
defraud  G.  M.  B.  and  H.  H.  of  and  out  of  certain  sound  lin- 
seed, which  they,  the  said  G.  M.  B.  and  PI.  H.,  then  and  there 
had,  possessed,  and  owned,  did  then  and  there  unlawfully,  know- 
ingly, and  designedly  falsely  pretend  and  represent  to  said  B. 
and  H.  that  he,  the  said  A.  B.,  was  then  and  there  a  merchandise 
broker,  and  that  he  had  received,  and  then  and  there  had  in  his 
capacity  as  merchandise  broker  as  aforesaid,  an  order  from  cer- 
tain persons  in  New  York,  meaning  thereby  the  city  of  E"ew 
York,  in  the  state  of  New  York,  whose  names  the  said  A.  B. 
did  not  then  and  there  disclose  to  the  said  B.  and  H.,  and  whose 
names  are  to  the  said  jurors  unknown,  then  and  there  to  pur- 
chase in  behalf  of  said  persons  a  large  quantity  of  sound  linseed, 
to  wit,  two  thousand  bags  of  sound  linseed,  at  the  price  of  three 

(t()  Under  this  indictment  it  was  held  not  necessary  to  aver  the  name  of  the 
person  intended  to  be  injured  or  defrauded.     Mack  ik  State,  63  Ala.  138. 

(f)  Sustained  in  Com.  v.  Jeffries,  7  Allen,  548.  See  Wh.  Cr.  L.  8th  ed. 
§§  1180,  1215,  1227. 

531 


(5416)  OFFENCES   AGAINST    PROPERTY. 

dollars  for  each  bushel  of  said  sound  linseed,  and  the  said  A.  B. 
then  and  there  falsely  offered,  in  his  said  capacity  as  merchan- 
dise broker,  in  behalf  of  said  persons,  and  in  pursuance  of  the 
order  which  he,  the  said  A.  B.,  then  and  there  falsely  pretended 
and  represented  that  he,  in  his  capacity  as  merchandise  broker, 
had  received  and  had  as  aforesaid,  to  the  said  B.  and  II.,  to  pur- 
chase of  them  two  thousand  bags  of  sound  linseed,  which  they, 
the  said  B.  and  H.,  then  and  there  had,  owned,  and  possessed,  at 
the  price  of  three  dollars  for  each  bushel  of  said  sound  linseed, 
and  they,  the  said  B.  and  H,,  then  and  there  having  and  desiring 
to  sell  two  thousand  bags  of  sound  linseed,  at  the  price  of  three 
dollars  for  each  bushel  of  said  sound  linseed,  and  then  and  there 
believing  the  said  false  pretences,  representations,  declarations, 
and  offer  so  falsely  made  as  aforesaid  by  the  said  A.  B.  to  be  true, 
and  being  deceived  thereby,  were  induced,  by  reason  of  the  said 
false  pretences,  representations,  declarations,  and  offer  so  falsely 
made  as  aforesaid,  then  and  there  to  accept  the  offer  so  falsely 
made  as  aforesaid  by  the  said  A.  B,  to  them,  the  said  B.  and  H., 
as  aforesaid,  and  then  and  there  agree  to  sell  to  the  said  persons 
from  whom  the  said  A.  B.  falsely  pretended  and  represented  that 
he  the  said  A.  B.,  in  his  said  capacity  as  merchandise  broker,  had 
received  an  order  to  purchase  a  large  quantity  of  sound  linseed, 
to  wit,  two  thousand  bags  of  sound  linseed,  at  the  price  of  three 
dollars  for  each  bushel  of  said  sound  linseed  as  aforesaid,  and 
then  and  there  induced,  by  reason  of  the  false  pretences,  represen- 
tations, declarations,  and  offer  so  falsely  made  as  aforesaid  by 
the  said  A.  B.,  did  sell  to  the  said  persons  from  whom  the  said 
A.  B.  falsely  pretended  and  represented  that  he,  the  said  A. 
B.,  in  his  said  capacity  as  merchandise  broker,  had  received  said 
order  to  purchase  two  thousand  bags  of  sound  linseed,  at  the 
price  of  three  dollars  for  each  bushel  of  said  sound  linseed  ; 
and  they,  the   said  B.  and   H.,  were  also  then  and  there  in- 
duced, by  reason  of  the  false  representations,  declarations,  and 
offer   so   falsely  made  as  aforesaid,  to  deliver,  and   then   and 
there  being  so  induced,  did  deliver,  in  pursuance  of  their  accept- 
ance of  the  offer  aforesaid,  falsely  made  as  aforesaid,  and  of 
their  agreement  aforesaid,  induced  by  the  said  false  pretences, 
declarations,  representations,  and  offer  so  falsely  made  as  afore- 
said, and  of  their  sale  aforesaid,  induced  and  made  as  aforesaid 
532 


FALSE    PRETENCES.  (5416) 

to  the  said  A.  B.,  in  his  said  capacity  as  merchandise  broker, 
two  thousand  bags  of  sound  linseed,  at  the  price  of  three  dollara 
for  each  bushel  of  said  sound  linseed,  each  of  the  said  bags  of 
sound  linseed  then  and  there  containing  three  and  a  half  bushels 
of  sound  linseed,  and  each  bag  of  said  sound  linseed  being  then 
and  there  of  the  value  of  eleven  dollars  and  fifty  cents,  and  being 
then  and  there  of  the  property  of  the  said  B.  and  H. ;  and  the 
said  A.  B.  did  then  and  there,  in  his  said  capacity  as  merchandise 
broker,  receive  the  said  two  thousand  bags  of  sound  linseed,  and 
each  bag  thereof,  at  the  price  of  three  dollars  for  each  bushel  of 
said  sound  linseed,  in  pursuance  of  the  said  sale  and  delivery  as 
aforesaid  ;  and  the  said  A.  B.  did  then  and  there,  in  his  said 
capacity  as  merchandise  broker,  make  the  said  false  pretences, 
representations,  declarations,  and  offer  as  aforesaid  to  the  said  B. 
and  H.,  to  induce  the  said  B.  and  H.  to  sell  to  the  persons  here- 
inbefore described,  and  to  deliver  to  him,  the  said  A.  B.,  in  his 
said  capacity  as  merchandise  broker,  the  said  two  thousand  bags 
of  sound  linseed,  and  each  bag  thereof,  in  manner  and  form 
aforesaid,  and  the  said  A.  B.,  in  his  said  capacity  as  merchandise 
broker,  did  then  and  there  receive  and  obtain  from  the  said  B. 
and  H.  the  said  two  thousand  bags  of  sound  linseed,  and  each 
bag  thereof,  of  the  value  aforesaid,  of  the  property  of  them,  the 
said  B.  arid  H.,  by  means  of  the  said  false  pretences,  representa- 
tions, declarations,  and  offer  so  falsely  made  as  aforesaid,  and 
with  intent  to  cheat  and  defraud.  Whereas,  in  truth  and  fact, 
the  said  A.  B.  had  not  then  and  there,  in  his  said  capacity  as 
merchandise  broker,  or  otherwise,  received,  and  did  not  then  and 
there,  in  his  said  capacity  as  merchandise  broker,  or  otherwise, 
have  an  order  from  said  persons  in  iN'ew  York,  or  from  any  other 
person  or  persons  anywhere,  for  the  purchase,  in  his  capacifty  as 
merchandise  broker,  or  otherwise,  in  behalf  of  said  persons,  or  in 
behalf  of  any  one,  of  a  large  quantity  of  sound  linseed,  to  wit, 
of  two  thousand  bags  of  sound  linseed,  or  of  any  sound  linseed  ; 
and  did  not  then  and  there,  in  his  said  capacity  of  merchandise 
broker,  or  otherwise,  have  from  said  persons,  or  from  any  person 
or  persons,  an  order  for  the  purchase  in  behalf  of  said  persons,  or 
in  behalf  of  any  one,  of  any  linseed  of  sound  quality  or  otherwise 
at  the  price  of  three  dollars  for  each  bushel  of  said  sound  linseed, 
as  the  said  A.  B.  then  and  there  well  knew. 

533 


(542)  OFFENCES    AGAINST    PROPERTY. 

And  so  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do 
sa}',  that  the  said  A.  B.,  by  means  of  the  false  pretences  afore- 
said, on,  etc.,  at,  etc.,  in  his  said  capacity  of  merchandise  broker 
as  aforesaid,  un-lawfully,  knowingly,  designedly,  and  fraudu- 
lently did  obtain  and  receive  from  the  said  B.  and  II.  the  said 
sound  linseed,  of  the  value  aforesaid,  of  the  property  of  the 
said  B.  and  H.,  with  intent  to  cheat  and  defraud  as  aforesaid, 
etc.     {Conclude  as  in  book  1,  chapter  8.) 

(542)  Pretending  to  he  clerk  of  a  steamboat,  and  authorized  to  collect 
money  for  the  boat. 

That  A.  B.,  on  the  first  day  of  November,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  forty-six,  in  the  county 
of  Hamilton  aforesaid,  unlawfully  did  falsely  pretend  to  one  M. 
N.,  that  he  the  said  A.  B.  then  was  clerk  of  the  steamboat 
"  Harlem,"  and  as  such,  that  the  said  A.  B.  was  then  and  there 
entitled  to  receive  from  the  said  M.  N.  and  0.  P.,  Q.  R.  and  S. 
T.  (the  said  M.  K,  0.  P.,  Q.  R.,  and  S.  T.  then  and  there  being 
partners  under  the  name  and  firm  of  IsT,,  S.  &  Co.),  a  large  sum 
of  money,  to  wit,  the  sum  of  twenty-four  dollars  and  ninety- 
four  cents,  on  account  of  and  for  freight  and  charges  due  the 
said  steamboat  "  Harlem,"  by  means  of  which  said  false  pre- 
tences, he  the  said  A.  B.  then  and  there  unlawfully  did  obtain 
from  the  said  M.  N.,  0.  P.,  Q.  R.,  and  S.  T.,  a  large  sum  of 
money,  to  wit,  the  said  sum  of  twenty-four  dollars  and  ninety- 
four  cents,  of  the  moneys  and  effects  of  the  said  M.  IST.,  O.  P.,  Q. 
R.,  and  S.  T.,  with  intent  then  and  there  to  cheat  and  defraud 
the  said  M.  IST.,  0.  P.,  Q.  R.,  and  S.  T.  of  the  said  sum  of  money ; 
whereas,  in  truth  and  in  fact,  the  said  A.  B.  was  not  then  such 
clerk  as  aforesaid,  nor  was  the  said  A.  B.  then  entitled  to  receive 
said  sum  of  money,  or  any  part  thereof,  from  the  said  M.  iN"., 
O.  P.,  Q.  R.,  and  S.  T.,  or  either  of  them,  and  the  said  A.  B.,  at 
the  time  he  so  falsely  pretended  as  aforesaid,  well  knew  the  said 
false  pretences  to  be  false,  QtQ.{w) 

(«•)  WaiTcn's  C.  L.  233. 

634 


FALSE   PRETENCES.  (^44) 

(543)  Pretence  made  to  a  tradesman  that  defendant  was  a  servant 
to  a  customer,  and  loas  sent  for  the  ixirticular  goods  ob- 
tained.{x) 

That  A.  B.,  etc.,  on,  etc.,  at,  etc.,  contriving  and  intending 
unlawfully,  fraudulently,  and  deceitfully  to  cheat  and  defraud 
one  C.  J),  of  his  goods,  wares,  and  m'erchandises,  on,  etc.,  at,  etc., 
aforesaid,  unla-wfully,  knowingly,  and  designedly  did  falsely  pre- 
tend to  the  said  C.  D.,  that  he  the  said  A.  B.  then  was  the  ser- 
vant of  one  C.  Q.,  of,  etc.,  tailor  (the  said  C.  Q.  then  and  long 
before  being  well  known  to  the  said  C.  D.,  and  a  customer  of  the 
said  C.  D.  in  his  said  business  and  way  of  trade),  and  that  he 
the  said  A.  B.  was  sent  by  the  said  C.  Q.,  to  the  said  C.  D.,  for 
ten  yards  of  certain  supertine  woollen  cloth,  by  which  said  false 
pretence  the  said  A.  B.  did  then  and  there,  to  wit,  on,  etc.,  at, 
etc.,  aforesaid,  unlawfully,  knowingly,  and  designedly  obtain 
from  the  said  C.  D.  ten  j^ards  of  superfine  woollen  cloth  of  the 
value  of  fifteen  pounds,  of  the  goods,  wares,  and  merchandises  of 
the  said  C. !).,(?/)  with  intent  then  and  there  to  cheat  and  defraud 
him  the  said  C.  D.  of  the  same,  whereas,  in  truth  and  in  fact,  the 
said  A.  B.  was  not  then  the  servant  of  the  said  C.  Q.,  and 
whereas,  he  the  said  A.  B.  was  not  then,  or  ever  hath  been,  sent 
by  the  said  C.  Q.  to  the  said  C.  B.  for  the  said  cloth,  or  for  any 
cloth  whatsoever,  against,  etc.,  and  against,  etc.  {Conclude  as 
171  book  1,  chapter  8.) 

(544)  Another  form  for  same.{z} 

That  J.  S.,  etc.,  on,  etc.,  at,  etc.,  intending,  etc.,  unlawfully, 
knowingly,  and  designedly  did  falsely  pretend  to  one  J.  IST.,  that 
the  said  J.  S.  then  was  the  servant  of  one  R.  0.,  of  St.  Paul's 
Churchyard,  in  the  city  of  London,  tailor  (the  said  R.  0.  then 
and  long  before  being  well  known  to  the  said  J.  N.,  and  a  cus- 
tomer of  the  said  J.  K.  in  his  business  and  way  of  trade  as  a 
woollen  draper),  and  that  the  said  J.  S.  was  then  sent  by  the 

(x)  Dickinson's  Q.  S.  335. 

(y)  This  is  essential.  R.  v.  Parker,  3  Q.  B.  292  ;  R.  v.  Norton,  8  C.  &  P. 
19G.  The  want  of  the  averment  will  occasion  indictment  to  be  quashed  (by  four 
judges),  S.  C,  for  it  is  not  cured  by  verdict  under  7  Geo.  JV.  c.  G4,  s.  21.  See 
Martin  v.  R.  (in  error),  3  N.  &  P. '472;  8  A.  &  E.  481  ;  R.  v.  Douglass,  Dick- 
inson's Q.  S.  337. 

(z)  Archbold's  C.  P.  ijth  Am.  ed.  345. 

535 


(544a)  OFFENCES    AGAINST    PROPERTY. 

said  R.  0.  to  the  said  J.  N.  for  five  yards  of  superfine  woollen 
cloth,  by  means  of  which  said  false  pretences  the  said  J.  S.  did 
then  and  there  unlawfully  obtain  from  the  said  J.  N.  five  yards 
of  superfine  woollen  cloth,  of  the  value  of  five  pounds,  of  the 
goods  ("  any  chattel,  money,  or  valuable  security ,")(«)  of  the 
said  J.  N".,  with  intent  then  and  there  to  cheat  and  defraud  him 
the  said  J.  IST.  of  the  same ;  whereas,  in  truth  and  in  fact,  the 
said  J.  S.  was  not  then  the  servant  of  the  said  R.  0. ;  and 
whereas,  in  truth  and  in  fact,  the  said  J.  S.  was  not  then,  or  at 
any  other  time,  sent  by  the  said  R.  0.  to  the  said  J.  K.  for  the 
said  cloth,  or  for  any  cloth  whatsoever,  to  the  great  damage  and 
deception  of  the  said  J.  N.,  to  the  evil  example  of  all  others  in 
the  like  case  oftending,  against,  etc.,  and  against,  etc.  [Conclude 
as  in  book  1,  chapter  3.) 

(544a)  Pretence  that  defendant  was  asked  by  "  a  jjerson  living  in  a 
large  house  down  the  street"  etc.,  to  buy  carpet  of  prose- 
cutor.ip) 

That  A.  B.,  on,  etc.,  at,  etc.,  unlawfully,  knowingly,  and  de- 
sigcnedly  did  falsely  pretend  to  one  G.  S.  that  a  certain  person 
wdio  lived  in  a  large  house  down  the  street,  and  had  had  a 
daughter  married  some  time  back,  had  been  at  him  the  said  A. 
B.  about  some  carpet,  and  had  asked  him,  the  said  A.  B.,  to  pro- 
cure a  piece  of  woollen  carpet,  to  wit,  about  twelve  yards;  by 
means  of  which  said  false  pretences  the  said  A.  B.  did  then  and 
there  unlawfully  obtain  from  the  said  G.  S.  twenty  yards  of 
woollen  carpet,  of  the  goods  and  chattels  of  the  said  G.  S., 
with  intent  thereby  then  to  defraud,  etc. ;  whereas,  in  truth 
and  fact,  no  such  person  as  aforesaid  had  then,  or  at  any  other 
time,  been  at  the  said  A.  B.  about  any  carpet,  nor  had  any  such 
person  as  aforesaid  asked  the  said  A.  B.  to  procure  any  piece  of 
woollen  carpet  whatsoever,  to  the  great  damage  and  deception 
of  the  said  G.  S.,  to  the  evil  example,  etc.  {Conclude  as  in  book 
1,  chapter  3.) 

(a)  See  7  &  8  Geo.  IV.  c.  29,  s.  5. 

(b)  Sustained  in  R.  v.  Burnsides,  8  Cox,  C.  C.  370;  Bell,  282;  Wh.  Cr.  L. 
8th  ed.  §§  1139,  1165. 

536 


FALSE    PRETENCES.  (545) 

(545)  Pretence  that  the  defendant  was  entitled  to  grant  a  lease  of 
certain  freehold  property. {c) 

That   P.  F.,  late  of  B.,  in  the  county  of  Middlesex,  laborer, 
on  the  first  day  of  June,  in  the  year  of  our  Lord  at  B. 

aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdiction 
of  the  central  criminal  court,  unlawfully  and  knowingly  did 
falsely  pretend  to  one  B.  E,,  that  the  said  P.  F.  then  was  the 
freeholder  of  a  certain  messuage  and  premises  situate  and  being 
in  Church  street,  in  B.  aforesaid,  in -the  county  aforesaid,  and 
that  the  said  P.  F.  then  had  a  good  and  sufiicient  right,  title, 
estate,  and  interest  in  the  said  messuage  and  premises  to  entitle 
and  enable  the  said  P.  F.  to  grant  to  the  said  B.  E.  a  lease  of 
the  said  messuage  and  premises  for  a  term  of  twenty  years,  and 
that  the  said  P.  F.  then  had  power  to  grant  the  said  lease  to 
the  said  B.  E.,  and  to  give  to  the  said  B.  E.  a  good  and  valid 
title  to  the  said  messuage  and  premises  for  the  said  term  of 
twenty  years;  by  means  of  which  said  false  pretences  the  said 
P.  F.  did  then  and  there  unlawfully  and  fraudulently  obtain 
from  the  said  B.  E.  thirty  pieces  of  the  current  gold  coin  of 
this  realm  called  sovereigns,  ten  pieces  of  the  current  silver  coin 
of  this  realm  called  shillings,  and  one  promissory  note  of  the 
governor  and  company  of  the  Bank  of  England,  for  the  pay- 
ment of  ten  pounds,  of  the  moneys  of  the  said  B.  E.,  with 
intent  then  and  there  to  cheat  and  defraud  him  of  the  same ; 
whereas,  in  truth  and  in  fact,  the  said  P.  F.  was  not  at  the  time 
he  so  falsely  pretended  as  aforesaid  the  freeholder  of  the  said 
messuage  and  premises,  or  of  any  part  thereof,  nor  had  he  then 
any  freehold  estate  whatever  in  the  said  messuage  and  premises, 
or  in  any  part  thereof,  as  the  said  P.  F.  then  well  knew ;  and 
whereas,  in  truth  and  in  fact,  the  said  P.  F.  had  not,  at  the 
time  he  so  falsely  pretended  as  aforesaid,  a  sufficient  right,  title, 
estate,  or  interest  to  entitle  or  enable  him  to  grant  any  lease  of 
the  said  messuage  and  premises  for  a  term  of  twenty  years,  or 
any  lease  whatever  of  the  said  messuage  and  premises,  or  any 
part  thereof,  as  the  said  P.  F.  then  well  knew ;  and  whereas,  in 
truth  and  in  fact,  the  said  P.  F.  had  not,  at  the  time  he  so  falsely 

(c)  5  Cox,  C.  C.  Appendix,  p.  li. 

537 


(545)  OFFENCES  AGAINST  PROPERTY. 

pretended  as  aforesaid,  any  right,  title,  estate,  or  interest  what- 
ever in  or  to  the  said  messuage  and  premises,  nor  had  he  then 
power  to  grant  the  said  lease  to  the  said  B.  E.,  or  to  give  to  the 
said  B.  E.  any  title  to  the  said  messuage  and  premises  for  the 
said  term  of  twenty  years,  or  for  any  term  of  years  whatever, 
or  any  title  whatever  to  the  said  messuage  and  premises,  or  any 
part  thereof;  to  the  great  damage  of  the  said  B.  E.,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace,  etc. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that,  before  and  at  the  time  of  the  committing  of  the 
offence  hereinafter  next  mentioned,  one  J.  L.  was  the  owner  and 
proprietor  of  the  said  messuage  and  premises  in  the  said  first 
count  of  this  indictment  mentioned.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  the  said  P.  F., 
on  the  day  aforesaid,  in  the  year  aforesaid,  at  B.  aforesaid,  in  the 
county  aforesaid,  and  within  the  jurisdiction  aforesaid,  unlaw- 
fully and  knowingly  did  again  falsel}^  pretend  to  the  said  B.  E. 
that  the  said  P.  F,  then  was  the  freeholder  of  the  said  messuage 
and  premises,  and  that  the  old  gentleman  to  whom  the  premises 
formerly  belonged,  meaning  the  said  J.  L.,  had  died,  and  had 
left  the  said  P.  F.  everything,  and  that  the  said  P.  F.  then  had  a 
sufficient  estate  and  interest  in  the  said  messuage  and  premises  to 
entitle  and  enable  him  to  grant,  and  then  had  power  to  grant  to 
the  said  B.  E.  a  lease  of  the  said  messuage  and  premises  for  a  term 
of  twenty  years;  by  means  of  which  said  false  pretences  in  this 
count  mentioned,  the  said  P.  F.  did  then  and  there  unlawfully 
and  fraudulently  obtain  from  the  said  B.  E.  thirty  pieces  of  the 
current  gold  coin  of  this  realm  called  sovereigns,  ten  pieces  of  the 
current  silver  coin  of  this  realm  called  shillings,  and  one  prom- 
issory note  of  the  governor  and  company  of  the  Bank  of  Eng- 
land, for  the  paj'ment  of  ten  pounds,  of  the  moneys  of  the  said 
B.  E.,  with  the  intent  then  and  there  to  cheat  and  defraud  him 
of  the  same  ;  whereas,  in  truth  and  in  fact,  the  said  P.  F.  was  not 
at  the  time  he  so  falsely  pretended,  as  in  this  count  mentioned, 
the  freeholder  of  the  said  messuage  and  premises,  or  any  part 
thereof,  nor  had  he  then  any  freehold  in  the  said  messuage  and 
538 


FALSE    PRETENCES.  (546) 

premises,  or  iu  any  part  thereof,  as  the  said  P.  F.  then  well  knew  ; 
and  whereas,  in  truth  and  in  fact,  at  the  time  the  said  P.  F.  so 
falsely  pretended  as  last  aforesaid,  the  said  J.  L.  had  not  died,  as 
the  said  P.  F.  then  well  knew  ;  and  whereas,  in  truth  and  in  fact, 
the  said  P.  F.  had  not  at  the  time  he  so  falsely  pretended  as  last 
aforesaid  a  sufficient  estate  or  interest  in  the  said  messuage  and 
premises  to  entitle  or  enable  him  to  grant,  nor  had  he  then  any 
power  to  grant  any  lease  for  a  term  of  twenty  years,  or  any  lease 
whatever,  of  the  said  messuage  and  premises,  or  of  any  part 
thereof,  as  the  said  P.  F.  then  and  there  well  knew  ;  to  the  great 
damage  of  the  said  B.  E.,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace,  etc. 

(546)  Pretence  that  the  defendant  was  the  authorized  agent  of  the 
Executive  Committee  of  the  Exhibition  of  the  Works  of  Indus- 
try of  all  Nations,  and  that  he  had  power  to  allot  space  to 
jirivate  individuals  for  the  exhibition  of  their  Yaerchandise.{d) 

That  heretofore,  and  before  the  committing  of  the  offence 
hereinafter  next  mentioned,  to  wit,  on  the  twenty-tifth  day  of 
October,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty,  an  application  was  made  by  Harriet  Richardson,  then 
being  the  wife  of  Thomas  Richardson,  to  one  Adam  Young  the 
younger,  for  a  certain  space,  to  wit,  a  space  of  four  feet  square, 
in  a  certain  building  then  in  the  course  of  erection  in  Hyde  Park, 
in  the  county  of  Middlesex,  for  the  purpose  of  an  exhibition  in- 
tended to  take  place  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  fifty-one,  and  called  and  known  as  the  Great  Exhi- 
bition of  the  Works  of  Lidustry  of  all  Nations,  for  the  purpose 
of  enabling  the  said  Harriet  Richardson  to  exhibit  certain  arti- 
cles, to  wit,  stays,  at  the  said  exhibition.  And  the  jurors  afore- 
said, upon  their  oath  aforesaid,  do  further  present,  that  the  said 
Adam  Young  the  younger,  late  of  the  parish  of  Saint  Dunstan 
in  the  East,  in  the  city  of  London,  laborer,  afterwards,  to  wit, 
on  the  day  aforesaid,  in  the  year  aforesaid,  at  the  parish  afore- 
said, in  the  city  aforesaid,  and  within  the  jurisdiction  of  the 
central  criminal  court,  unlawfully,  knowingly,  and  designedly 
did  falsely  pretend  to  the  said  Harriet  Richardson  that  the  said 

((/)  4  Cox,  C.  C.  Appendix,  p.  xlv. 

589 


(546)  OFFENCES  AGAINST  PROPERTY. 

Adam  Young  the  younger  then  was  an  authorized  agent  for  the 
purpose  of  granting  space  for  the  exhibition  of  articles  at  the 
said  exhibition  ;  and  that  the  said  Adam  Young  the  younger 
then  was  the  only  person  who  had  the  power  to  grant  space  to 
the  said  Harriet  Richardson  for  the  exhibition  of  articles  at  the 
said  exhibition ;  and  that  the  said  Adam  Young  the  younger 
then  had  power  to  grant  to  the  said  Harriet  Richardson  the 
space  so  applied  for  by  the  said  Harriet  Richardson  as  aforesaid  ; 
by  means  of  which  said  false  pretences  the  said  Adam  Young 
the  younger  did  then  and  there  unlawfully  obtain  from  the  said 
Harriet  Richardson  three  pieces  of  the  current  silver  coin  of  this 
realm  called  half-crowns,  two  pieces  of  the  current  silver  coin  of 
this  realm  called  shillings,  and  one  piece  of  the  current  silver  coin 
of  this  realm  called  a  sixpence,  of  the  moneys  of  the  said  Thomas 
Richardson,  with  intent  then  and  there  to  cheat  and  defraud  the 
said  Thomas  Richardson  of  the  same  ;  whereas,  in  truth  and  in 
fact,  the  said  Adam  Young  the  younger  was  not  then  an  author- 
ized agent  for  the  purpose  of  granting,  and  had  not  any  authority 
whatever  to  grant,  space  for  the  exhibition  of  articles  at  the  said 
exhibition,  or  any  space  whatever  in  the  said  building,  as  the 
said  Adam  Young  the  younger  then  and  there  well  knew  ;  and 
whereas,  in  truth  and  in  fact,  the  said  Adam  Young  the  younger 
was  not  then  the  only  person  who  had  power  to  grant  space  for 
the  exhibition  of  articles  at  the  said  exhibition,  as  the  said  Adam 
Young  the  younger  then  and  there  well  knew  ;  and  whereas,  in 
truth  and  in  fact,  the  said  Adam  Young  the  younger  had  not 
then  any  power,  authority,  or  right  whatever  to  grant  space  for 
the  exhibition  of  articles  at  the  said  exhibition  to  the  said  Har- 
riet Richardson,  or  to  any  other  person  whatever,  or  any  space 
whatever  in  the  said  building  to  the  said  Harriet  Richardson,  or 
any  other  person,  as  the  said  Adam  Young  the  younger  then  and 
there  well  knew  ;  to  the  great  damage  of  the  said  Thomas  Rich- 
ardson, contrarj'-  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  etc. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  heretofore,  and  before  the  committing  of  the  offence 
hereinafter  next  mentioned,  to  wit,  on  the  day  aforesaid,  in  the 
540 


FALSE   PRETENCES.  (546) 

year  of  our  Lord  one  thousand  eight  hundred  and  fifty,  an  ap- 
plication was  made  by  the  said  Harriet,  the  wife  of  the  said 
Thomas  Richardson,  to  the  said  Adam  Young  the  younger,  for 
a  certain  space,  to  wit,  a  space  of  four  feet  square,  at  the  Great 
Exhibition,  meaning  thereby  a  space  of  four  feet  square  in  a 
certain  building  intended  to  be  used  as  the  building  in  which  a 
certain  exhibition,  called  and  known  as  the  Great  Exhibition  of 
the  Works  of  Industry  of  all  iN'ations,  should  take  place,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-one,  for 
the  exhibition  of  certain  articles,  to  wit,  stays,  at  the  said  exhi- 
bition. And  the  jurors  aforesaid  do  further  present,  that  the 
said  Adam  Young  the  younger  afterwards,  to  wit,  on  the  day 
aforesaid,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty,  at  the  parish  aforesaid,  in  the  city  aforesaid,  and 
within  the  jurisdiction  of  the  central  criminal  court,  unlawfully, 
knowingly,  and  designedly  did  again  falsely  pretend  to  the  said 
Harriet  Richardson,  that  the  said  Adam  Young  the  younger 
then  had  power  to  grant  to  the  said  Harriet  Richardson  space 
for  the  exhibition  of  articles  at  the  said  exhibition.  And  that 
the  said  Adam  Young  the  younger  then  had  power  to  grant  to 
the  said  Harriet  Richardson  the  said  space,  so  applied  for  by  the 
said  Harriet  Richardson  as  aforesaid,  by  means  of  which  said 
last  mentioned  false  pretences  the  said  Adam  Young  the  younger 
did  then  and  there  unlawfully  obtain  from  the  said  Harriet 
Richardson  three  other  pieces  of  the  current  silver  coin  of  this 
realm  called  half-crow^is,  two  other  pieces  of  the  current  silver 
coin  of  this  realm  called  shillings,  and  one  other  piece  of  the 
current  silver  coin  of  this  realm  called  a  sixpence,  of  the  moneys 
of  the  said  Thomas  Richardson,  with  intent  then  and  there  to 
cheat  and  defraud  the  said  Thomas  Richardson  of  the  same; 
whereas,  in  truth  and  in  fact,  the  said  Adam  Young  the  j'ounger 
had  not  then  any  power  or  right  whatsoever  to  grant  space  for 
the  exhibition  of  articles  at  the  said  exhibition  to  the  said 
Harriet  Richardson,  or  to  any  other  person  whatever,  or  any 
space  whatever  in  the  said  building  to  the  said  Harriet  Rich- 
ardson, or  any  other  person,  as  the  said  Adam  Young  the 
younger  then  and  there  as  last  aforesaid  well  knew ;  to  the 
great  damage  of  the  said  Thomas  Richardson,  against  the  form 

541 


(546)  OFFENCES  AGAINST  PROPERTY. 

of  the  statute  in  such  case  made  and  provided,  and  against  the 
peace,  etc. 

Thi7xl  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that,  before  the  committing  of  the  oflence  hereinafter 
next  mentioned,  to  wit,  on  the  day  aforesaid,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty,  an  application  was 
made  by  the  said  Thomas  Richardson  to  the  said  Adam  Young 
the  younger  for  a  certain  space,  to  wit,  a  space  of  four  feet 
square,  in  the  building  intended  for  the  proposed  Great  Exhi- 
bition of  one  thousand  eight  hundred  and  fifty-one,  meaning 
hereby  the  Great  Exhibition  of  the  Works  of  Industry  of  all 
IsTations,  intended  to  be  holden  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  fifty-one.  And  the  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further  present,  that  heretofore, 
and  before  the  making  of  the  said  last  mentioned  application, 
an  executive  committee  for  carrying  out  the  said  exhibition 
had  been  and  was  duly  appointed  for  the  purpose  of  carrying  out 
the  said  exhibition,  and  that,  amongst  other  things,  the  power 
of  allotting  space  in  the  said  last  mentioned  building  to  persons 
desirous  of  becoming  exhibitors  in  the  said  exhibition  had  been, 
and  was,  vested  and  intrusted  to  the  said  committee.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 
that  the  said  Adam  Young  the  younger  afterwards,  to  wit,  on 
the  day  aforesaid,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  fifty,  at  the  parish  aforesaid,  in  the  city  aforesaid, 
and  within  the  jurisdiction  aforesaid,  unlawfully,  knowingly, 
and  fraudulently  did  again  falsely  pretend  to  the  said  Thomas 
Richardson,  that  the  said  Adam  Young  the  younger  was  the 
only  authorized  agent  of  the  commissioners,  meaning  thereby 
that  he  was  the  only  authorized  agent  of  the  said  executive 
committee  for  granting  space,  meaning  thereby  space  in  the  said 
last  mentioned  building,  and  that  the  said  Adam  Young  the 
younger  then  had  power  to  allot  to  the  said  Thomas  Richardson 
the  space  in  the  said  building,  so  applied  for  by  the  said  Thomas 
Richardson  as  last  aforesaid,  by  means  of  which  said  last  men- 
tioned false  pretences,  the  said  Adam  Young  the  younger  did 
then  and  there,  as  last  aforesaid,  unlawfully  attempt  and  en- 
542 


FALSE    PRETENCES.  (546) 

deavor  unlawfully  to  obtain  from  the  said  Thomas  Richardson 
a  large  sum  of  money,  to  wit,  the  sum  of  ten  shillings,  of  the 
moneys  of  the  said  Thomas  Richardson,  with  intent  then  and 
there  to  cheat  and  defraud  him  thereof;  whereas,  in  truth  and 
.in  fact,  the  said  Adam  Young  the  younger  was  not,  at  the  time 
he  so  falsely  pretended  as  last  aforesaid,  an  authorized  agent  of 
the  said  executive  committee  for  granting  space  in  the  last  men- 
tioned building,  as  he  the  said  Adam  Young  the  younger  then 
and  there  as  last  aforesaid  well  knew ;  and  whereas,  in  truth 
and  in  fact,  the  said  Adam  Young  the  younger  had  not,  at  the 
time  he  falsely  pretended  as  aforesaid,  any  power,  authority,  or 
right  whatsoever,  to  allot  any  space  whatever  in  the  said  last 
mentioned  building  to  the  said  Thomas  Richardson,  or  to  any 
other  person,  as  he  the  said  Adam  Young  the  younger,  at  the 
time  he  so  falsely  pretended  as  last  aforesaid,  well  knew  ;  to  the 
great  damage  of  the  said  Thomas  Richardson,  and  against  the 
peace,  etc. 

Fourth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  before  the  committing  of  the  offence  next  herein- 
after mentioned,  to  wit,  on  the  day  aforesaid,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty,  an  application  was 
made  by  the  said  Thomas  Richardson  to  the  said  Adam  Young 
for  a  certain  space,  to  wit,  the  space  of  four  feet  square,  in  the 
building  intended  for  the  proposed  Great  Exhibition,  to  be 
holden  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-one,  to  wit,  the  proposed  Great  Exhibition  of  Works  of  In- 
dustry of  all  ITations.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  Adam  Young  the 
younger  afterwards,  to  wit,  on  the  day  aforesaid,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty,  at  the  parish 
aforesaid,  in  the  city  and  within  the  jurisdiction  aforesaid,  un- 
lawfully, knowingly,  and  fraudulently  did  again  falsely  pretend 
to  the  said  Thomas  Richardson,  that  the  said  Adam  Young  the 
younger  then,  as  last  aforesaid,  had  power  to  allot  to  the  said 
Thomas  Richardson  the  space  in  the  said  last  mentioned  build- 
ing, so  applied  for  by  the  said  Thomas  Richardson  as  last  afore- 
said, by  means  of  which  said  last  mentioned  false  pretences  the 

543 


(547)  OFFENCES   AGAINST    PROPERTY. 

said  Adam  Young  the  younger  did  then  and  there,  as  last  afore- 
said, unlawfully  attempt  and  endeavor  unlawfully  to  obtain 
from  the  said  Thomas  Richardson  a  large  sum  of  money,  to  wit, 
the  sum  of  ten  shillings,  of  the  moneys  of  the  said  Thomas 
Richardson,  with  intent  then  and  there  to  cheat  and  defraud- 
the  said  Thomas  Richardson  thereof;  whereas,  in  truth  and  in 
fact,  the  said  Adam  Young  the  younger  had  not,  at  the  time  he 
so  falsely  pretended  as  last  aforesaid,  any  power,  authority,  or 
right  whatever,  to  allot  any  space  whatever  in  the  last  men- 
tioned building  to  the  said  Thomas  Richardson,  or  to  any  other 
person,  as  the  said  Adam  Young  the  younger,  at  the  time  he  so 
falsely  pretended  as  last  aforesaid,  well  knew  ;  to  the  great  dam- 
age of  the  said  Thomas  Richardson,  and  against  the  peace,  etc. 

(547)  Pretence  that  prisoner  was  an  unmarried  man,  and  thai,  hav- 
ing been  engaged  to  her,  the  prosecidrix,  and  the  engagement 
broken  off,  he  loas  entitled  to  support  an  action  of  breach  of 
promise  against  her,  by  xohieh  means  he  obtained  money  from 
her.{e) 

That  S.  M.  C,  otherwise  called  S.  M.,  etc.,  on,  etc.,  unlawfully 
did  falsely  pretend  to  the  said  A.  C,  then  and  there  being  a 
single  woman,  that  he  was  a  single  and  unmarried  man,  and 
thereby  then  and  there  obtained  a  promise  of  marriage  from  the 
said  C,  to  wit,  a  promise  that  in  consideration  that  he  would 
marry  her  she  would  marry  him.  And  the  jurors,  etc.,  do  fur- 
ther present,  that  the  said  A.  C,  afterwards,  to  wit,  on  the  day 
and  year,  etc.,  wholly  refused  to  marry  the  said  S.  M.  C,  other- 
wise called,  etc.  And  the  jurors,  etc.,  do  further  present,  that 
the  said  S.  M.  C,  otherwise  called,  etc.,  afterwards,  to  wit,  on 
the  day  and  year,  etc.,  unlawfully  did  falsely,  knowingly,  and 
designedly  pretend  to  the  said  A.  C.  that  he  was,  at  the  time  of 
the  said  promise  and  refusal  in  this  count  mentioned,  a  single 
and  unmarried  man,  and  entitled  to  bring  and   maintain  an 

(e)  R.  I'.  Copeland,  1  C,  &  M.  516.  In  this  case  It  was  held  by  Lord  Den 
ham,  C.  J.,  and  Maule,  J.,  that  the  fact  of  the  prisoner  paying  his  addresses 
•was  sufficient  evidence  for  the  jury,  on  which  tliey  might  find  the  first  pretence 
that  the  prisoner  was  a  single  man  and  in  a  condition  to  marry ;  and  by  Maule, 
J.,  that  this  was  sufficient  evidence  on  which  to  find  the  falseness  of  the  other 
pretence,  that  he  was  entitled  to  maintain  his  action  for  breach  of  promise  of 
marriage,  and  that  such  latter  false  pretence  was  a  sufficient  false  pretence  within 
the  statute.     "Wh.  Cr.  L.  8th  ed.  §  1148. 

644 


FALSE    PRETENCES.  (547a) 

action  for  breach  of  the  said  promise  of  marriage  against  her  the 
.said  A.  C,  by  means  of  which  said  last  mentioned  false  pretence 
in  this  count  mentioned,  the  said  S.  M.  C,  otherwise  called,  etc., 
did  then  and  there  unlawfully  obtain  from  the  said  A.  C.  one 
promissory  note  of  the  governor  and  company  of  the  Bank  of 
England,  for  the  payment  of  one  hundred  pounds,  etc.  {describ- 
ing various  kinds  of  money  and  securities),  of  the  property  and 
moneys  of  the  said  A.  C,  with  intent  then  and  there  to  cheat 
and  defraud  her  the  said  A.  C.  of  the  same ;  whereas,  in  truth 
and  in  fact,  the  said  S.  M.  C,  otherwise  called,  etc.,  was  not,  at 
the  time  of  the  said  promise  of  marriage  in  this  count  men- 
tioned, or  at  the  time  of  the  said  refusal  in  this  count  mentioned, 
a  single  man  or  an  unmarried  man,  nor  was  he,  at  either  of 
those  times  or  at  any  other  time,  entitled  to  bring  or  maintain 
an  action  for  breach  of  the  said  promise  of  marriage  against  the 
said  A.  C,  etc.,  against,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

(547a)  Pretence  that  a  certain  coat  was  a  particular  uniform^  etc. 

The  jurors  for,  etc.,  upon  their  oath  present,  that  J.  F.  B.,  on, 
etc.,  unlawfully  and  knowingly  did  false'ly  pretend  unto  S.  C,  a 
station-master  in  the  employment  of  the  L.,  B.,  and  S.  C.  E..  Co., 
that  the  great-coat  which  he,  the  said  J.  F.  B.,  then  handed  to 
the  said  S.  C.  was  the  same  great-coat,  and  part  of  the  uniform 
clothing  which  had  been  supplied  to  him  the  said  J.  F.  B.  by 
the  said  company.  By  means  of  which  said  false  pretences  the 
said  J.  F.  B.  did  then  unlawfully  obtain  from  the  said  S.  C.  one 
pound  in  money,  with  intent  to  defraud.  Whereas,  in  truth  and 
in  fact,  the  said  great-coat  was  not  the  same  great-coat,  nor  did 
it  form  part  of  the  uniform  clothing  which  had  been  supplied  to 
him  the  said  J.  F.  B.  by  the  said  company,  against,  etc.(/) 
{Conclude  as  in  book  1,  chapter  3.) 

(/)  It  appeared  in  evidence  on  tlie  trial  of  this  indictment  that  the  prisoner, 
J.  F.  B.,  on  entering  the  service  of  the  said  company,  signed  a  book  of  rules,  a 
copy  of  which  vyas  given  to  him.  One  of  the  rules  was:  "No  servant  of  the 
company  shall  be  entitled  to  claim  payment  of  any  wages  due  to  him  on  leaving 
the  company's  service  until  he  shall  have  delivered  up  his  uniform  clotliing." 
On  leaving  the  service  the  prisoner  knowingly  and  fraudulently  delivered  up  to 
an  officer  of  the  company,  as  part  of  his  own  uniform,  a  great-coat  belonging  to 
a  fellow  servant,  and  so  obtained  the  wages  due  to  him.  It  was  held,  that  the 
defendant  was  properly  convicted  of  obtaining  the  money  by  false  pretences. 
R.  V.  Bull,  13  Cox,  C.  C.  608. 

VOL.  I.— 35  545 


(548) 


OFFENCES    AGAINST    PROPERTY. 


(548)  Pretence  that  defendants  7oe?r  the  agents  of  P.  H.,  who  was  the 
owner  of  certain  stock  and  land^  etc.,  the  latter  of  which  was  in 
fact  mortgaged.{g) 

That  R.  H.  and  J.  C,  etc.,  on,  etc.,  at,  etc.,  being  persons  of  an 
evil  disposition,  and  devising  and  intending  by  unlawful  ways 

(^)  This  form  was  sustained  in  Com.  v.  Harley,  7  IVIet.  464. 

Dewey,  J.  :  "  As  to  the  first  exception  taken  to  the  instructions  given  to  the 
jury,  at  the  trial,  we  think  the  principle  stated  in  Young  and  others  v.  the  King, 
3  T.  R.  98,  referred  to  by  the  counsel  for  the  defendant,  sustains  the  ruling, 
rather  than  the  objection  to  it.  The  argument  for  the  plaintifls  in  error  there 
was,  that  the  words  could  not  have  been  spoken  by  all,  and  that  one  of  them 
could  not  be  affected  by  words  spoken  by  another,  each  being  answerable  for 
himself  only.  But  it  was  held,  that  '  if  they  all  acted  together,  and  shared  in 
the  same  transaction,'  they  committed  the  offence  jointly.  Grose,  J.,  said: 
'  Every  crime,  which  may  be  in  its  nature  joint,  may  be  so  laid.  Here  it  is 
stated  that  all  the  defendants  committed  this  offence,  by  all  joining  in  the  same 
plan  ;  they  were  all  jointly  concerned  in  defrauding  the  prosecutor  of  his  money.' 
Now  it  seems  to  us,  that  if  two  may  be  indicted  for  the  words  spoken  by  one  in 
the  presence  of  the  other,  it  appearing  that  they  came  to  act  in  concert,  it 
establishes  the  position  that  all  which  is  necessary  to  cause  the  liability  to  attach 
to  an  individual  of  having  participated  in  making  false  pretences,  is  his  co-opera- 
tion and  acting  in  concert  in  the  general  purpose ;  and  the  concert  and  co-opera- 
tion may  be  shown,  although  one  said  nothing  by  way  of  assenting  to  or  express- 
ing his  concurrence  in  the  false  pretences.  If  this  be  so,  it  seems  necessarily  to 
follow  that  if  A.  procures  B.  to  go  to  C,  and  with  a  false  pretence,  of  which  A. 
is  conversant,  to  obtain  the  goods  of  C,  A.  is  guilty  in  the  matter  of  obtaining 
these  goods  by  false  pretences ;  and  whether  A.  be  outside  or  within  the  door  of 
the  sliop  of  C.  is  immaterial ;  all  that  is  necessary  to  be  proved  is,  that  he  is  at 
the  time  acting  in  concert  with  B.,  and  aiding  in  putting  forth  the  false  pretences, 
and  that  tlie  precise  false  pretences  and  representations  charged  in  the  indict- 
ment be  made  with  his  knowledge,  concurrence,  and  direction.  The  instruction 
on  this  point  was  therefore  correct. 

"The  next  instruction  to  the  jury,  which  is  objected  to,  was  in  these  words: 
'  It  is  not  necessary  for  the  government  to  prove  that  the  defendants,  or  either  of 
them,  obtained  the  goods  on  their  own  account,  or  that  they,  or  either  of  them, 
derived,  or  expected  to  derive,  personally,  any  pecuniary  benefit  therefrom  ;  but 
that  if  the  jury  were  satisfied  that  the  defendants  obtained  said  goods  by  means 
of  said  false  pretences,  for  the  sole  use  and  benefit  of  said  P.  Harley,  this  was 
sufficient  to  sustain  the  allegation  in  the  indictment,  that  the  defendants  obtained 
said  goods  by  said  false  pretences.' 

"  It  is  not  contended  by  the  defendant's  counsel  that  it  was  necessary,  in  order 
to  support  the  indictment,  for  the  government  to  prove  that  the  defendant  in- 
tended any  pecuniary  gain  or  personal  benefit.  That  the  contrary  is  the  rule  is 
very  clear,  and  was  fully  conceded  in  the  argument.  But  the  ground  assumed 
is  that  of  a  variance  between  the  matter  set  forth  in  the  indictment,  and  the 
proof  showing  that  the  goods  were  obtained  for  the  sole  use  of  P.  Harley.  I 
should  doubt,  from  the  report  of  the  case,  whether  the  (question  of  variance  was 
distinctly  raised  at  the  trial.  The  point  seems  rather  to  have  been,  whether  a 
party  charged  with  obtaining  goods  by  false  pretences  must  not  be  shown  to  have 
obtained  them  thus  for  his  own  use  or  pecuniary  benefit.  If,  however,  we  look 
at  the  ([uestion  as  one  of  variance,  we  think  the  exception  cannot  pi-evail.  The 
only  allegation  which  is  supposed  to  conflict  with  the  evidence  that  the  goods 
were  obtained  for  the  use  of  P.  Harley  is  this,  that  the  defendants,  '  devising 

546 


FALSE   PRETENCES.  (5^8) 

and  means  to  obtain  and  get  into  their  hands  and  possession  the 
goods,  merchandise,  chattels,  and  effects  of  the  honest  and  good 
citizens  of  this  commonwealth,  and  with  intent  to  cheat  and 
defraud  one  G.  B.  B.,  one  D.  IST.,  and  one  E.  H.  R.  L.,  all  of  said 
Boston,  Massachusetts,  and  copartners  in  trade,  transacting  busi- 
ness under  the  name,  firm,  and  style  of  G.  B.  B.  and  Company, 
did  then  and  there  unlawfully,  knowingly,  and  designedly  falsely 
pretend  and  represent  to  said  G.  B.  B.  and  Company,  that  they 
were  in  the  employment  of  one  P.  H.,  of  said  Boston,  trader ; 
that  said  P.  II.  was  possessed  of,  and  was  the  rightful  owner  of 
the  stock  of  goods  which  then  were  in  a  certain  shop,  situated 
at  the  corner  of  Hanover  street  and  Union  street  in  said  Bos- 
ton, and  was  solvent  and  in  good  credit,  and  they  were  author- 
ized to  buy  goods  in  the  name  of  said  P.  H.  by  said  P.  H,,  and 
that  said  R.  H.  was  authorized  to  give  promissory  notes  for  such 
goods,  in  the  name  of  and  in  behalf  of  said  P.  H.,  that  said  P.  H. 
was  a  man,  and  wanted  to  buy  goods  on  credit  of  said  G.  B.  B. 
and  Company,  in  the  fair  and  usual  honest  course  of  trade,  with 
intent  to  pay  honestly  for  them  at  the  expiration  of  the  term  of 
credit  upon  wdiich  they  should  be  sold. 

And  the  said  B.,  JST.,  and  L.,  then  and  there  believing  the  said 
false  pretences  and  representations,  so  made  as  aforesaid  by  the 
said  R.  H.  and  J.  C  ,  and  being  deceived  thereby,  were  induced, 
by  reason  of  the  false  pretences  and  representations  so  made  as 
aforesaid,  to  deliver,  and  did  then  and  there  deliver,  to  the  said 
R.  11.  and  J.  C.  for  said  P.  H.,  sundry  goods  and  merchandise  of 
great  value,  to  wit,  of  the  value  of  one  hundred  and  forty-seven 
dollars  and  sixty-six  cents,  to  wit,  one  piece  of  wool  black  cloth, 

and  intending  by  unlawful  means  to  get  into  their  hands  and  possession,'  etc. 
But  the  evidence  fully  sustained  the  allegation.  By  means  of  these  ialse  pre- 
tences, the  defendants  did  actually  obtain  and  get  into  their  hands  and  possession 
these  goods ;  and  although  they  might  have  had  a  further  purpose  of  eventually 
delivering  them  to  P.  Harley  for  her  sole  use,  that  fact,  if  shown  by  the  defend- 
ants, would  not  avail  them  to  escape  from  this  indictment. 

"The  remaining  exception  was,  that  the  false  pretences  were  not,  as  shown 
by  the  evidence,  made  personally  to  either  of  the  members  of  the  firm  of  George 
B.  Blake  &  Co.,  but  to  a  clerk  acting  for  them  in  their  shop,  and  by  him  com- 
municated to  one  of  the  firm.  This  objection  was  not  much  relied  on,  ;ind  it 
cannot  be  sustained.  It  was  directly  overruled  in  the  case  of  Com.  v.  Call  (21 
Pick.  515),  where  it  was  held  that  a  false  representation  to  an  agent  who  com- 
municates it  to  his  principal,  who  is  influenced  by  it,  is  a  false  pretence  to  the 
principal." 

547 


(548)  OFFENCES   AGAINST    PROPERTY. 

one  piece  of  ribbed  cassimere  cloth,  one  piece  of  mixed  doeskin 
cloth,  six  pounds'  weight  of  thread,  and  one  pound  of  beaux- 
sewings,  of  the  proper  goods,  merchandise,  chattels,  and  eftects 
of  said  B.,  N.,  and  L. 

And  the  said  C.  and  R.  H.  did  then  and  there  receive  and  ob- 
tain the  said  goods,  merchandise,  chattels,  and  effects  of  the  said 
B.,  N".,  and  L.,  by  means  of  the  false  pretences  and  representa- 
tions aforesaid,  and  with  the  intent  to  cheat  and  defraud  the 
said  B.,  N.,  and  L.,  of  the  same  goods  and  merchandise,  chat- 
tels, and  effects. 

"Whereas,  in  truth  and  in  fact,  said  P.  H.  was  not  possessed  of, 
and  was  not  the  rightful  owner  of,  said  stock  of  goods  in  said 
store,  at  said  corner  of  Hanover  Street  and  Union  Street,  but, 
before  that  time,  had  made,  executed,  and  delivered  divers,  to 
wit,  five,  mortgages  on  said  stock  and  her  property,  conditioned 
for  the  payment  of  large  sums  of  money,  to  wit,  sums  of  money 
collectively  amounting  to  more  than  the  value  of  said  stock  of 
goods  and  her  mortgaged  property  aforesaid  ;  all  of  which  mort- 
gages are  recorded  in  the  city  clerk's  office  of  said  city  of  Bos- 
ton, according  to  law,  one  of  which  is  dated  on  the  fourteenth 
day  of  July,  in  the  year  eighteen  hundred  and  forty-one,  to  R. 
H.,  administrator  on  the  estate  of  one  C.  H. ;  another  is  dated 
on  the  tenth  day  of  May,  in  the  year  eighteen  hundred  and 
forty-two,  to  the  same  administrator;  and  another  is  dated  on 
the  second  day  of  June,  in  the  same  year,  to  the  same  adminis- 
trator; and  another  of  said  mortgages  is  dated  on  the  twenty- 
ninth  day  of  September,  in  the  same  year,  to  the  same  adminis- 
trator ;  and  another  of  said  mortgages  is  dated  on  the  thirty-first 
day  of  October,  in  the  same  year,  to  the  same  administrator ; 
and  said  P.  H.  was  not  a  solvent  person  in  good  credit,  but  was 
poor,  embarrassed,  and  unable  to  pay  the  debts  P.  H.  owed,  and 
the  said  P.  H.  was  not  a  man  but  a  woman,  named  P.  H.,  who 
was  insolvent  and  unable  to  pay  her  debts,  and  she  did  not  want 
to  buy  goods  honestly  on  credit  in  a  fair  way  of  business,  and 
said  G.  and  R.  H.  did  not  want  for  her  to  buy  goods  honestly  in 
a  fair  course  of  trade  on  credit  of  said  B.,  jN".,  and  L.,  with  in- 
tent to  pay  for  them  as  aforesaid,  but  to  cheat  them. 

And  so  the  jurors  aforesaid,  upon  their  oath   aforesaid,  do 
say,  that  the  said  R.  H.  and  J.  C,  by  means  of  the  false  pre- 
548 


FALSE   PRETENCES.  (5-19) 

tences  aforesaid,  on  the  said  fourth  day  of  iN^ovember,  in  the 
year  of  our  Lord  eighteen  hundred  and  forty-two,  at  Boston 
aforesaid,  unlawfully,  knowingly,  and  designedly  did  receive 
and  obtain  from  said  B.,  N.,  and  L.  the  said  goods,  merchan- 
dise, chattels,  and  effects  of  the  proper  goods,  merchandise,  chat- 
tels, and  effects  of  the  said  B.,  N.,  and  L.,  with  intent  to  defraud 
them  of  the  same,  against,  etc.,  and  contrary,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 

(549)  That  defendant  possessed  a  capital  of  eight  thousand  dollars, 
ivhich  had  come  to  him.  through  his  wife,  it  being  her  estate, 
and  that  a  part  of  it  had  already  come  into  his  possession, 
and  a  jpart  would  come  into  his  possession  in  the  month  then 
next  ensuing,  etc.{h)    First  count. 

That  J.  A.  B.,  late  of  the  said  county,  trader,  maliciously  and 
•wickedly  devising  and  intending  to  cheat  W.  H.  A.  and  E.  R. 

{h)  This  was  the  Indictment  in  Com.  v.  Burdick  (2  Barr,  163),  with  the  ex- 
ception of  the  introduction  in  the  text  of  the  "scienter"  after  the  allegation  of 
the  falsity  of  the  pretences.  The  statute  in  this  case  received  an  extremely- 
liberal  construction  from  Gibson,  C.  J. :  "The  rule  of  the  common  law,"  he  said, 
"  that  cheating  in  private  ti'ansactions  without  affecting  the  public,  must,  to  be 
indictable,  have  been  effected  by  artful  devices  or  false  tokens,  was  found  to  be 
too  narrow  for  the  business  of  the  world,  and  the  English  statute,  20  Geo.  II. 
c.  29,  which  has  given  place  to  the  7  Geo.  IV.  c.  92,  s.  53,  was  enacted  to  extend 
the  limits  of  the  offence.  From  these,  our  act  of  1842,  §  21,  seems  to  have  been 
taken,  and  decisions  on  the  clause  in  the  first,  whicli  declares  it  an  indictable 
offence  to  get  money,  chattels,  or  securities  from  anotlier,  '  by  false  pretence  or 
pretences,'  or  in  the  second,  '  by  any  false  pretence,'  may  be  advantageously  ap- 
plied to  cases  here.  Tlie  distinctions  taken  under  these  statutes,  between  cases 
sometimes  differing  in  almost  imperceptible  degrees,  are  nice  and  well  founded; 
and  though  not  authoritative  here,  may  help  us  in  attaining  a  sound  construction 
of  our  own  statute,  which  differs  from  either  of  its  models  very  little  in  sub- 
stance or  in  form.  It  would  be  a  waste  of  time  to  pass  those  decisions  in  review, 
as  they  are  collected  and  arranged  in  all  the  text  books  of  criminal  law  ;  but  it 
may  be  collected  from  them,  that  a  professed  intent  to  do  an  act  whicli  the  party 
did  not  mean  to  do,  as  in  Rex  v.  Goodall  (R.  &  R.  461),  and  Rex  v.  Douglass 
(1  Mood.  C.  C.  462),  is  the  only  species  of  false  pretence  to  gain  property  wliieh 
is  not  indictable.  These  two  cases,  having  been  decided  by  the  twelve  judges, 
are  eminently  entitled  to  respect ;  but  I  think  it  at  least  doubtful  whether  a  naked 
lie,  by  which  credit  has  been  gained,  would  not,  in  every  case,  be  deemed  Avithin 
our  statute,  which  declares  it  a  cheat  to  obtain  money  or  goods  by  any  false  pre- 
tence whatsoever.  Its  terms  are  certainly  more  emphatic  than  those  of  either  of 
the  English  statutes  ;  but  whether  a  false  pretence  of  mere  intent  be  within  them 
or  not,  it  is  certain  that  a  fraudulent  misrepresentation  of  the  party's  means  and 
resources  is  within  the  English  statutes,  and,  d  fortiori.,  within  our  own.  In  Rex 
V.  Jackson  (3  Campb.  370),  it  was  held  to  be  an  offence  to  obtain  goods  by  giving 
a  check  on  a  banker  with  whom  the  drawer  kept  no  cash.  Of  the  same  stamp  is 
the  King?;.  Parker  (2  C.  &  P.  825)  ;  but  Regina  v.  Henderson  and  another  (1  C. 
&  M.  183)  is  still  more  to  the  purpose.     The  prisoners  falsely  pretended  that  one 

549 


(549)  OFFENCES    AGAINST    PROPERTY. 

of  their  goods  and  merchandise,  on,  etc.,  at,  etc  ,  did  falsely,  un- 
lawfully, knowingly,  designedly,  and  fraudulently  pretend  to 
the  said  W.  H.  A.  and  the  said  E.  R.,  that  he  the  said  J.  A.  B. 
possessed  a  capital  of  eight  thousand  dollars,  that  the  said  eight 
thousand  dollars  had  come  to  him  through  his  wife,  it  being  her 
estate,  and  that  a  part  of  it  had  already  come  into  his  posses- 
sion, a  part  would  come  into  his  possession  in  the  month  then 
next  ensuing,  and  that  for  the  remaining  part  thereof  he  would 
be  obliged  to  wait  for  a  short  time  ;  whereas,  in  truth  and  fact, 
he,  the  said  J.  A.  B.,  did  not  then  possess  a  capital  of  eight 
thousand  dollars,  nor  had  eight  thousand  dollars  come  to  him 
through  his  wife,  it  being  her  estate,  a  part  of  which  had  already 
come  into  his  possession,  a  part  would  come  into  his  possession 
in  the  month  then  next  ensuing,  while  for  the  remaining  part 
thereof  he  would  be  obliged  to  wait  for  a  short  time,  as  he,  the 
said  J.  A.  B.,  did  then  and  there  falsely  pretend  to  the  said  W. 
II.  A.  and  the  said  E.  R. ;  of  the  falsity  of  which  said  pretences 
he,  the  said  J.  A.  B.,  then  and  there  well  knew.  And  the  in- 
quest, etc.,  do  further  present,  that  the  said  J.  A.  B.,  afterwards, 
to  wit,  on  the  day  and  year  aforesaid,  at  the  county  and  within 
the  jurisdiction  aforesaid,  by  the  said  false  pretences  aforesaid, 
did  then  and  there  unlawfully,  fraudulently,  and  designedly 
obtain  from  the  said  W.  H.  A.  and  E.  R.  divers  goods  and  mer- 
chandise, to  wit,  six  pieces  rich  satin  stripe  silk,  being  together 
of  the  value  of  one  hundred  and  four  dollars,  and  one  piece  of 
striped  cloaking,  of  the  value  of  fifty  dollars,  being  then  and 
there  the  property  of  the  said  W.  H.  A.  and  E.  R.,  with  intent 
to  defraud  the  said  W.  H.  A,  and  E.  R.  of  the  same,  to  the 
great  damage  of  the  said  W.  H.  A.  and  the  said  E.  R.,  contrary, 
etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

of  them  -was  possessed  of  twelve  pounds,  which  he  agreed  to  give  for  his  con- 
federate's horse,  for  which  it  was  proposed  that  the  prosecutor  shoidd  exchange 
his  mare ;  and  this  was  held  to  be  clearly  a  false  pretence  within  the  statute. 
Now  the  defendant  is  charged  in  the  indictment  before  us,  with  having  wilfully- 
misrepresented  that  he  had  a  capital  of  eight  thousand  dollars,  in  right  of  his 
wife;  that  a  part  of  it  was  already  received;  that  another  part  of  it  would  be 
received  in  the  course  of  a  month ;  and  that  the  residue  would  be  received 
shortly  afterwards;  and  if,  as  was  said  in  Mitchell's  case  (2  East,  P.  C.  80),  a 
false  pretence  is  within  the  English  statute,  wherever  it  has  been  the  efficient 
cause  of  obtaining  credit,  the  false  pretence  before  us  is  within  our  own."  See 
in  general  Wh.  Cr.  L.  8th  ed.  §§  1135,  1173. 

550 


FALSE   PRETENCES.  (^51) 

(550)  Second  count.     Tliat  defendant  has  a  capital  of  $S00O,  which 
came  through  his  wife. 

And  the  inquest,  etc.,  do  further  present,  that  the  said  J.  A.  B., 
wickedly  and  fraudulently  devising  and  intending  as  aforesaid  to 
cheat  and  defraud  the  said  W.  H.  A.  and  E.  R.  of  their  goods 
and  merchandise,  on  the  day  and  year  aforesaid,  at  the  county 
and  within  the  jurisdiction  aforesaid,  did  falsely,  designedly,  and 
fraudulently  pretend  to  the  said  W.  H.  A.  and  E.  R.,  that  he  the 
said  J.  A.  B.  possessed  a  capital  of  eight  thousand  dollars,  which 
said  eight  thousand  dollars  had  come  to  him  through  his  wife,  it 
being  her  estate  ;  whereas,  in  truth  and  fact,  he  the  said  J,  A.  B. 
did  not  then  and  there  possess  a  capital  of  eight  thousand  dol- 
lars, nor  had  eight  thousand  dollars  come  to  him  through  his  wife, 
nor  had  she,  his  wife,  as  aforesaid,  an  estate  of  eight  thousand  dol- 
lars, as  he  the  said  J.  A.  B.  did  then  and  there  falsely  pretend  to 
the  said  W.  H.  A.  and  the  said  E.  R.,  of  the  falsity  of  which 
said  pretences,  he  the  said  J.  A.  B.  then  and  there  well  knew. 
And  the  inquest,  etc.,  do  further  present,  that  the  said  J.  A.  B., 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  at  the  county 
and  within  the  jurisdiction  aforesaid,  did,  unlawfully,  know- 
ingly, and  fraudulently  obtain  from  the  said  W.  H.  A.  and  the 
said  E.  R.  divers  goods  and  merchandise,  to  wit,  six  pieces  of 
rich  satin  stripe  silk,  together  of  the  value  of  one  hundred  and 
four  dollars,  and  one  piece  of  striped  cloaking,  of  the  value  of 
fifty  dollars,  being  then  and  there  the  property  of  the  said  W. 
H.  A.  and  E.  R.,  with  intent  to  defraud  the  said  W.  H.  A.  and 
E.  R.  of  the  same,  to  the  great  damage  of  the  said  W.  H.  A. 
and  the  said  E.  R.,  contrary,  etc.,  and  against,  etc.  {Conclude  as 
in  book  1,  chapter  3.) 

(551)   Ihird  count.     That  defendant  had  a  capital  of  $8000. 

That  the  said  J.  A.  B.,  wickedly  and  fraudulently  devising  and 
intending  as  aforesaid  to  cheat  and  defraud  the  said  W.  II.  A. 
and  E.  R.  of  their  goods  and  merchandise,  on  the  day  and  year 
aforesaid,  at  the  county  aforesaid,  and  within  the  jurisdiction 
aforesaid,  did  falsely,  designedly,  and  fraudulently  pretend  to  the 
said  W.  H.  A.  and  the  said  E.  R.,  that  he  the  said  J.  A.  B.  then 
and  there  possessed  a  capital  of  eight  thousand  dollars  ;  whereas, 

551 


(552)  OFFENCES  AGAINST  PROPERTY. 

in  truth  and  in  fact,  the  said  J.  A.  B.  did  not  then  and  there 
possess  a  capital  of  eight  thousand  dollars,  as  he  the  said  J.  A. 
B.  then  and  there  did  falsely  pretend  to  the  said  W.  H.  A.  and 
the  said  E.  R.  And  the  inquest,  etc.,  do  further  present,  that 
the  said  J.  A.  B.  did  then  and  there  unlawfully,  knowingly,  and 
fraudulently  obtain  from  the  said  W.  H.  A.  and  the  said  E.  R. 
divers  goods  and  merchandise,  to  wit,  six  pieces  of  striped  silk"-, 
being  together  of  the  value  of  one  hundred  and  four  dollars, 
and  one  piece  of  striped  cloaking  of  the  value  of  fifty  dollars, 
being  then  and  there  the  property  of  the  said  W.  H.  A.  and  the 
said  E.  E,.,  with  intent  to  defraud  the  said^W.  H.  A.  and  the 
said  E.  R.  of  the  same,  to  the  great  damage  of  the  said  W.  H. 
A.  and  the  said  E.  R.,  contrary,  etc.,  and  against,  etc.  {Conclude 
as  in  book  1,  chapter  3.) 

(552)  Pretence  that  defendant  was  well  off  and  free  from  debt,  etc.[i) 

That  A.  Gr.  D.,etc.,  on,  etc.,  at,  etc.,  unlawfully  and  wickedly 
devising  and  intending  to  cheat  and  defraud  one  W.  F.  of  his 
goods,  moneys,  chattels,  and  property,  unlawfully,  fraudulently, 
and  designedly  did  falsely  pretend  to  the  said  W.  F.,  that  he 
the  said  A.  G.  D.  had  paid  every  dollar  of  the  old  score  that  he 
owed  in  Philadelphia,  that  he  was  well  oft',  and  that  he  was 
very  rich,  and  had  a  great  deal  of  property  in  Kentucky. 
Whereas,  in  truth  and  in  fact,  he  the  said  A.  G.  D.  had  not  paid 
every  dollar  of  the  old  score  that  he  owed  in  Philadelphia,  and 
was  not  well  off",  and  w^as  not  very  rich,  but  on  the  contrary 
was  very  poor,  and  did  not  own  a  great  deal  of  property  in 
Kentucky ;  and  he  the  said  A.  G.  D.  then  and  there  well  knew 
the  said  pretence  and  pretences  to  be  false ;  by  color  and  means 
of  which  said  false  pretence  and  pretences,  he  the  said  A.  G.  D. 
did  then  and  there  unlawfully  obtain  from  the  said  W.  F.  one 
black  mantilla  of  the  value  of  twenty-five  dollars,  one  garnet 
mantilla  of  the  value  of  twenty  dollars,  one  black  silk  mantilla 
of  the  value  of  fourteen  dollars,  one  black  embroidered  mantilla 
of  the  value  of  fourteen  dollars,  two  plain  silk  mantillas  of  the 

(^■)  Com.  V.  Daniels,  2  Parsons,  352.  Under  this  indictment  the  defendant  was 
convicted  in  Philadelphia,  and  sentenced.  A  writ  of  error  was  afterwards  taken 
in  the  supreme  court  (the  assijinment  of  error  being  confined  to  the  sentence), 
and  the  judgment  of  the  court  below  was  affirmed.  Wh.  Cr.  L.  8th  ed.  §§  1147, 
1170. 

552 


FALSE    PRETENCES.  (553) 

value  of  twenty-four  dollars,  two  figured  silk  mantillas  of  the 
value  of  eighteen  dollars,  twenty-six  yards  and  a  half  of  striped 
silk  of  the  value  of  forty-three  dollars  and  six  cents,  two  silk 
shawls  of  the  value  of  twenty-four  dollars,  two  cashmere  shawls 
of  the  value  of  twenty  dollars,  two  net  bags  of  the  value  of 
eight  dollars,  two  velvet  bags  of  the  value  of  eight  dollars, 
twelve  yards  of  figured  silk  of  the  value  of  nineteen  dollars 
and  fifty  cents,  one  trunk  of  the  value  of  one  dollar  and  fifty 
cents,  being  together  of  the  value  of  two  hundred  and  thirty- 
nine  dollars  and  six  cents,  being  then  and  there  the  property  of 
the  said  W.  F.,  with  intent  to  cheat  and  defraud  the  said  W. 
F.,  to  the  great  damage  of  the  said  W.  F.,  contrary,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(553)  Second  count.     Negativing  the  pretence  more  fuUi/. 

That  the  said  A.  G.  D.,  etc.,  on,  etc.,  at,  etc.,  unlawfully  and 
wickedly  designing  and  intending  to  cheat  and  further  defraud 
the  said  W.  F.  of  his  goods,  moneys,  chattels,  and  property, 
unlawfully  and  designedly  did  further  falsely  pretend  to  the 
said  W.  F.,  that  he  the  said  A.  G.  D.  had  paid  every  dollar  of 
the  old  score  that  he  owed  in  Philadelphia  (meaning  thereby 
that  he  paid  and  discharged  all  the  old  debts  which  he  owed 
in  Philadelphia,  and  all  debts  which  he  had  previously  con- 
tracted in  Philadelphia),  that  he  was  well  off  (meaning  thereby 
that  he  had  ample  means),  that  he  was  rich,  and  had  a  great 
deal  of  property  in  the  state  of  Kentucky  (meaning  thereby 
that  he  was  a  person  of  great  wealth).  Whereas,  in  truth  and 
in  fact,  he  the  said  A.  G.  D.  had  not  then  and  there  paid  ofl^ 
every  dollar  of  the  old  debts  which  he  owed  in  Philadelphia, 
and  had  not  paid  off  all  debts  which  he  had  previously  con- 
tracted in  Philadelphia,  but  on  the  contrary  then  and  there 
owed  and  still  does  owe  large  sums  of  money  to  various  per- 
sons, as  follows:  Seven  hundred  and  fifty-eight  dollars  and 
seventy-eight  cents  to  J.  M.  0.,  J.  T.,  and  S.  B,  D.,  trading  as 
0.  and  T. ;  ten  hundred  and  forty  dollars  and  eighteen  cents  to 
S.  W.  A.,  G.  W.  J.,  and  W.  F.,  trading  as  A.,  J.  and  Co. ;  eight 
hundred  and  twenty-two  dollars  and  twenty-two  cents  to  R.  L. 
and  H.  J.,  trading  as  L.  and  J. ;  three  hundred  and  ninety  dol- 
lars and  twenty-four  cents  to  I.  H.  and  W.  J.  W.,  trading  as  H. 

553 


(554)  OFFENCES  AGAINST  PROPERTY. 

and  TV". ;  four  hundred  and  forty-one  dollars  and  thirty-four 
cents  to  R.  D.  W.,  J.  A.,  J.  B.,  and  II.  W.,  trading  as  W.  and 
A.;  three  hundred  and  ninety-seven  dollars  and  fifty-one  cents 
to  R.  W.  D.  T.,  W.  S.  P.,  and  C.  B.  T.,  trading  as  T.,  P.,  and 
T. ;  eighty-five  dollars  and  twenty-six  cents  to  R.  J.  T.  and  0. 
E.,  trading  as  T.  and  E. :  and  he  the  said  A.  G.  D.  was  not  well 
ofi",  but  on  the  contrary  was  very  poor,  and  he  the  said  A.  G.  D. 
was  not  rich,  but  on  the  contrary  was  then  insolvent  and  unable 
to  pay  his  debts,  and  he  the  said  A.  Gr.  D.  had  not  then  a  great 
deal  of  property  in  Kentucky  ;  by  color  and  means  of  which 
said  false  pretence  and  pretences,  he  the  said  A.  G.  D.  did  then 
and  there  unlawfully  obtain  from  the  said  W.  F.  the  goods  and 
chattels,  property,  and  merchandise  in  the  aforesaid  first  count 
mentioned,  with  intent  to  cheat  and  defraud  the  said  W.  F.,  to 
the  great  damage  of  the  said  W.  F.,  contrary,  etc.,  and  against, 
etc.     {Conclude  as  in  book  1,  chapter  8.) 

(554)   That  certain  property  of  the  defendant  was  miincumbered^  and 
that  he  himself  ivas  free  from  debts  and  liabilities.{j) 

That  before  the  commission  of  the  ofi:ence  hereinafter  men- 
tioned, one  R.  H.  C.  was  possessed  of  and  entitled  to  a  certain 
reversionary  interest,  to  wnt,  a  certain  reversionary  interest  of 
and  in  and  to  one  third  of  a  certain  sum  of  ten  thousand  pounds, 
three  per  cent,  annuities,  expectant  on  the  death  of  one  R.  C, 
and  that  the  said  R.  H.  C.  before  the  commission  of  the  offence 
hereinafter  mentioned,  to  wit,  on  the  first  day  of  November,  in 
the  year  of  our  Lord  duly  executed  a  certain  mortgage  of 

the  said  reversionary  interest  to  one  R.  S.  H.  H.,  as  and  for  and 
by  the  way  of  security  to  the  said  R.  S.  H.  H.,  for  the  repayment 
to  him  of  a  certain  sum  of  money,  to  wit,  the  sum  of  one  thou- 
sand pounds  and  interest,  and  that  the  said  R.  H.  C.  afterwards, 
and  before  the  commission  of  the  said  offence,  to  wit,  on  the 
twenty-fifth  day  of  October,  in  the  year  of  our  Lord  charged 

the  said  reversionary  interest,  to  which  he  was  so  entitled  as 
aforesaid,  with  the  payment  of  a  certain  other  sum  of  money,  to 
wit,  the  sum  of  five  hundred  pounds  and  interest.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present, 

[j)  5  Cox,  C.  C.  Appendix,  p.  xc. 

554 


FALSE  PRETENCES.  (554) 

that  the  said  R.  H.  C,  late  of  the  parish  of  Saint  Pancras,  in 
the  county  of  Middlesex,  gentleman,  well  knowing  the  premises, 
and  contriving  and  intending  to  cheat  and  defraud,  on  the  thir- 
teenth day  of  March,  in  the  year  of  our  Lord  at  the  parish 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  did  apply- 
to  and  request  one  J.  P.  to  advance  and  lend  to  him,  the  said  R. 
H.  C,  a  certain  sum  of  money,  to  wit,  the  sum  of  two  hundred 
pounds,  and  did  then  and  there  unlawfully  and  knowingly  falsely 
pretend  to  the  said  J.  P.  that  the  said  R.  H.  C.  had  not  then  in- 
cumbered his  said  reversionary  interest,  and  that  the  said  R.  H. 
C.  had  not  borrowed  any  money  from  any  other  person  on  the 
security  of  the  said  reversionary  interest  of  the  said  R.  H.  C. ; 
by  means  of  which  said  false  pretences  the  said  R.  II.  C.  did 
then  and  there  unlawfully,  knowingly,  and  designedly  fraudu- 
lently obtain  of  and  from  the  said  J.  P.  one  order  for  the  pay- 
ment of  money,  to  wit,  for  the  payment  and  of  the  value  of  two 
hundred  pounds,  and  one  piece  of  paper,  of  the  value  of  one  penny, 
and  the  sum  of  two  hundred  pounds  in  money,  of  the  property, 
goods,  chattels,  and  moneys  of  the  said  J.  P.,  with  intent  then 
and  there  to  cheat  and  defraud  him  of  the  same ;  whereas,  in 
truth  and  in  fact,  the  said  R.  II.  C,  at  the  time  he  so  falsely  pre- 
tended as  aforesaid,  had  incumbered,  and  well  knew  that  he  had 
incumbered,  his  said  reversionary  interest ;  and  whereas,  in  truth 
and  in  fact,  the  said  R.  H.  C,  at  the  time  he  so  falsely  pretended 
as  aforesaid,  had  borrowed,  and  well  knew  that  he  had  borrowed, 
certain  money  from  certain  persons,  other  than  the  said  J.  P., 
upon  the  security  of  the  said  reversionary  interest,  to  wit,  the 
said  sum  of  one  thousand  pounds,  of  and  from  the  said  R.  S.  H. 
H.,  and  the  said  other  sum  of  five  hundred  pounds,  of  and  from 
one  J.  J. ;  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace,  etc. 

Second  count. 
And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  R.  H.  C,  being  possessed  of  and  entitled  to 
a  reversionary  interest  in  a  certain  sum  of  ten  thousand  pounds, 
three  per  cent,  annuities,  expectant  upon  the  decease  of  one 
R.  C,  did  apply  to  and  request  the  said  J.  P.  to  advance  and 
lend  money  to  him  the  said  R.  II.  C,  to  wit,  on  the  thirty-first 

555 


(554)  OFFENCES    AGAINST    PROPERTY. 

day  of  May,  in  the  year  of  our  Lord  at  the  parish  afore- 

said, and  within  the  jurisdiction  of  the  said  court,  and  did  then 
and  there  unlawfully,  knowingly,  and  designedly  falsely  pretend 
to  the  said  J.  P.  that  the  said  R.  H.  C.  had  never  in  any  manner 
theretofore  mortgaged,  assigned,  or  incumhered  his  reversionary 
interest  in  the  said  ten  thousand  pounds,  three  per  cent,  annuities, 
or  any  part  thereof;  that  the  said  R.  H.  C.  had  never  been  a 
party  to  any  deed  or  instrument  whereby  his  interest  in  the  said 
stock  had  or  could  have  been  in  any  manner  afi'ected ;  that  the 
said  R.  H.  C.  was  not  then  liable  on  any  deed  or  instrument  as 
surety  for  any  person  whomsoever;  that  the  said  R.  H.  C.  had 
not  then  borrowed  any  money  whatsoever,  except  from  the  said 
J.  P.,  and  that  the  said  R.  H.  C.  did  not  then  owe,  and  was  not 
then  liable,  for  a  greater  amount  of  debts,  exclusive  of  a  sum  of 
four  hundred  pounds,  which  he  then  owed  to  the  said  J.  P.,  than 
the  sum  of  three  hundred  pounds  ;  by  means  of  which  said  false 
pretences,  in  this  count  mentioned,  the  said  R.  H.  C.  did  then 
and  there  unlawfully,  knowingly,  and  designedly  fraudulently 
obtain  of  and  from  the  said  J.  P.  one  order  for  the  payment  of 
money,  to  wit,  for  the  payment  and  of  the  value  of  the  sum  of  fifty 
pounds,  and  one  piece  of  paper  of  the  value  of  one  penny,  and 
the  sum  of  fifty  pounds  in  money,  of  the  property,  goods,  chattels, 
and  moneys  of  the  said  J.  P.,  with  intent  to  cheat  and  defraud 
him  of  the  same;  whereas,  in  truth  and  in  fact,  at  the  time  the 
said  R.  H.  C.  so  falsely  pretended  as  last  aforesaid,  he  had  mort- 
gaged, assigned,  and  incumbered  his  said  reversionary  interest  in 
the  said  sum  of  ten  thousand  pounds,  three  per  cent,  annuities, 
to  wit,  to  the  said  R.  S.  H.  H.  and  J.  J.,  for  the  purpose  of  secur- 
ing to  them  respectively  the  repayment  of  the  said  sums  of  one 
thousand  pounds  and  five  hundred  pounds  hereinbefore  men- 
tioned ;  and  whereas,  in  truth  and  in  fact,  at  the  time  the  said 
R.  H.  C.  so  falsely  pretended  as  last  aforesaid,  the  said  R.  H.  C. 
had  been,  and  then  was,  a  party  to  certain  deeds,  by  which  his 
said  reversionary  interest  in  the  said  sum  of  ten  thousand  pounds 
had  been  and  was  then  affected,  to  wit,  the  said  deeds  by  which 
the  repayment  of  the  said  sums  of  one  thousand  pounds  and  five 
hundred  pounds  was  charged  upon  his  said  reversionary  interest; 
and  whereas,  in  truth  and  in  fact,  at  the  time  the  said  R.  H.  C. 
80  falsely  pretended  as  in  this  count  aforesaid,  the  said  R.  H.  C. 


FALSE    PRETENCES.  (554a) 

was  liable  on  certain  bonds  as  surety  for  certain  persons,  to  wit, 
one  M.  S.  and  one  E.  J.,  to  wit,  in  two  several  suras  of  fifteen 
thousand  pounds;  and  whereas, in  truth  and  in  fact, at  the  time 
the  said  R.  H.  C.  so  falsely  pretended  as  in  this  count  mentioned, 
the  said  R.  H.  C.  had  borrowed  certain  sums  of  money  from  cer- 
tain persons  other  than  the  said  J.  P.,  to  wit,  the  sum  of  five 
thousand  pounds  from  the  said  R,.  S.  H.  H.,  and  the  sum  of  three 
thousand  pounds  from  the  said  J.  J. ;  and  whereas,  in  truth  and 
in  fact,  at  the  time  the  said  R.  H.  C.  so  falsely  pretended  as 
aforesaid,  the  said  R.  H.  C.  did  owe,  and  was  then  liable  for  a 
greater  amount  of  debts  than  the  sum  of  three  hundred  pounds, 
exclusive  of  any  money  which  he  then  owed  to  said  J.  P.,  that 
is  to  say,  the  said  R.  H.  C.  then  owed  to  the  said  R.  S.  H.  H.  a 
greater  sum  of  money  than  the  sum  of  three  hundred  pounds, 
to  wit,  the  sum  of  six  hundred  pounds,  and  the  said  R.  H.  C. 
then  owed  to  the  said  J.  J.  a  greater  sum  of  money  than  the  said 
sum  of  three  hundred  pounds,  to  wit,  the  sum  of  six  hundred 
pounds,  all  which  said  several  premises  the  said  R.  H.  C,  at  the 
time  he  so  falsely  pretended  as  aforesaid,  well  knew ;  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace,  etc. 

(554a)  False  'pretence  that  goods  were  unincumhered.{k) 

That  "W.  M.,  on,  etc.,  at,  etc.,  unlawfully,  designedly,  and 
knowingly  did  falsely  pretend  unto  T.  M.  W.  that  the  goods  of 
him,  the  said  W.  M.  were  unincumbered,  and  that  a  certain 
pretended  bill  of  sale  of  the  said  goods,  which  pretended  bill  of 
sale  the  said  "W.  M.  then  delivered  to  the  said  T.  M.  "W.,  was  a 
good  and  valid  bill  of  sale  of  the  said  goods  to  the  said  T.  M.  W. ; 
by  means  of  which  said  false  pretences  the  said  "W.  M.  did 
then  and  there  unlawfully,  designedly,  and  knowingly  obtain 
from  the  said  T.  M.  W.  £8  175.  60?.  in  money,  with  intent  to  de- 
fraud ;  whereas,  in  truth  and  fact,  the  said  goods  of  him,  the  said 
W.  M.,  were  not  unincumbered,  nor  was  the  said  pretended  bill 
of  sale  a  good  and  valid  bill  of  sale  of  the  said  goods  to  the  said 
T.  M.  "W.,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

(^-)   Sustained  in  R.  v.  Meakin,  11  Cox,  C.  C.  270. 

557 


(555)  OFFENCES  AGAINST  PROPERTY. 

(555)  Pretence  that  defendant  had  then  purchased  certam  property^ 
which  it  was  necessary  he  should  immediately  pay  for. {I) 

That  W.  J.,  late  of  the  parish  of  Christchurch,  Newgate 
Street,  in  the  city  of  London,  laborer,  on  the  first  day  of  March, 
in  the  year  of  our  Lord  at  the  parish  aforesaid,  in  the  city 

aforesaid,  and  within  the  jurisdiction  of  the  said  court,  did 
unlawfully,  fraudulently,  knowingly,  and  designedly  falsely  pre- 
tend to  one  S.  N.  that  the  said  W.  J.  then  had  at  a  certain  place, 
then  called  and  known  by  the  name  of  Dixon's  Liars,  to  wit,  at 
Dixon's  Liars,  at  Islington,  in  the  county  of  Middlesex,  and 
within  the  jurisdiction  of  the  said  court,  one  hundred  and  eight 
sheep,  which  the  said  W.  J.  had  then  purchased,  and  for  which 
said  one  hundred  and  eight  sheep  the  said  W.  J.  had  then  and 
there  to  pay  on  the  said  first  day  of  March,  to  wit,  on  the  day 
and  year  aforesaid,  and  within  the  jurisdiction  aforesaid,  by 
means  of  which  said  false  pretences  the  said  W.  J.  did  then 
and  there,  and  within  the  jurisdiction  aforesaid,  unlawfully, 
knowingly,  and  designedly  fraudulently  obtain  of  and  from  the 
said  S.  N.,  of  the  goods,  chattels,  moneys,  and  valuable  securities 
of  the  said  S.  N.,  ten  pieces  of  the  current  gold  coin  of  this 
realm,  called  sovereigns  ;  one  valuable  security,  to  wit,  an  order 
for  the  payment  of,  and  of  the  value  of  one  hundred  pounds; 
one  other  valuable  security,  to  wit,  one  order  for  the  payment 
of,  and  of  the  value  of  five  hundred  pounds  ;  one  other  valuable 
security,  to  wit,  one  other  order  for  the  payment  of  money,  to 
wit,  one  other  order  for  the  payment  of,  and  of  the  value  of 
four  hundred  pounds ;  one  other  valuable  security,  to  wit,  one 
other  order  for  the  paj^ment  of  money,  to  wit,  one  other  order 
for  the  payment  of,  and  of  the  value  of  three  hundred  pounds ; 
and  one  other  valuable  security,  to  wit,  one  other  order  for  the 
payment  of  money,  to  wit,  one  other  order  for  the  payment  of, 
and  of  the  value  of  six  hundred  pounds  ;  with  intent  then  and 
there,  and  within  the  jurisdiction  aforesaid,  to  cheat  and  defraud 
the  said  S.  N.  of  the  same  goods,  chattels,  moneys,  valuable 
securities,  and  orders  for  the  payment  of  money  respectively, 
the  said  sums  of  money  payable  and  secured  by  and  upon  the 

(I)   4  Cox,  C.  C.  Appendix,  p.  xxxiii. 

558 


FALSE  PRETENCES.  (555) 

said  valuable  securities  and  orders  for  the  payment  of  money, 
t)eing  then  and  there  due  and  unsatisfied  to  the  said  S.  'N.^  the 
proprieter  and  owner  of  the  said  several  valuable  securities  and 
orders  for  the  payment  of  monej'  respectively  ;  whereas,  in  truth 
and  in  fact,  the  said  W.  J.  had  not,  at  the  time  when  the  said 
W.  J.  so  obtained  the  said  moneys,  and  the  said  several  valuable 
securities  and  orders  for  the  payment  of  money  from  the  said  S. 
]S^.  as  aforesaid,  and  when  the  said  W.  J.  made  the  said  false 
pretences  as  aforesaid,  one  hundred  and  eight  sheep  at  Dixon's 
Liars,  at  Islington ;  and  whereas,  in  truth  and  in  fact,  the  said 
W.  J.  had  not  then  purchased  the  said  one  hundred  and  eight 
sheep  ;  and  whereas,  in  truth  and  in  fact,  the  said  W.  J.  had  not 
then  to  pay  for  the  said  one  hundred  and  eight  sheep,  to  wit, 
on  the  said  first  day  of  March  ;  all  of  which  said  false  pretences 
the  said  W.  J.,  at  the  time  of  the  making  thereof,  well  knew  to 
be  false;  to  the  great  damage,  injury,  and  deception  of  the  said 
S.  N".  and  in  fraud  of  the  said  S.  N.,  to  the  evil  example  of  all 
others  in  the  like  case  ott'ending,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace, 
etc. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  S.  N.,  heretofore,  to  wit,  on  the  day  and 
year  aforesaid,  and  within  the  jurisdiction  aforesaid,  was  accus- 
tomed to,  and  from  time  to  time  and  at  various  times  did,  at 
the  request  of  the  said  W.  J.,  advance  and  intrust  divers  sums 
of  moneys  to  the  said  W.  J.  for  the  purpose  of,  and  to  enable 
the  said  W".  J.  to  pay  for  sheep,  after  the  said  W.  J.  had,  in  the 
way  of  his  trade,  purchased  the  same.  And  the  jurors  afore- 
said, on  their  oath  aforesaid,  do  further  present,  that  the  said 
"W.  J.  heretofore,  to  wit,  on  the  said  first  day  of  March,  in  the 
year  aforesaid,  in  the  city  aforesaid,  and  within  the  jurisdiction 
of  the  said  court,  well  knowing  the  premises,  did  unlawfully, 
fraudulently,  knowingly,  and  designedly  falsely  pretend  to  the 
said  S.  IST.  that  the  said  W.  J.  had  theretofore,  and  before  the 
making  the  false  pretences  by  the  said  W.  J.  hereinafter  in  this 
count  mentioned,  purchased  for  himself  a  certain  number  of 
sheep,  of  a  certain  value,  to  wit,  of  the  value  of  five  hundred 

559 


(555)  OFFENCES  AGAINST  PROPERTY. 

pounds,  for  which  the  said  W.  J.  had  to  pay  at  the  bank  of 
Messieurs  Pockington  and  Company,  on  the  day  and  year  last 
aforesaid,  a  certain  sum  of  money,  to  wit,  the  sum  of  five 
hundred  pounds,  by  means  of  which  last  mentioned  false  pre- 
tences in  this  count  mentioned,  the  said  W.  J.  did  then  and 
there,  and  within  the  jurisdiction  aforesaid,  unlawfully,  know- 
ingly, and  designedly  fraudulently  obtain,  of  and  from  the  said 
S.  N.,of  the  goods  and  chattels,  moneys,  and  valuable  securities 
of  the  said  S.  !N".,  one  valuable  security,  to  wit,  one  order  for  the 
payment  of  money,  to  wit,  one  order  for  the  payment  of,  and 
of  the  value  of  iive  hundred  pounds,  with  intent  then  and 
there,  at  the  time  of  the  making  of  the  said  false  pretences  by 
the  said  "W".  J.  in  this  count  mentioned,  and  within  the  juris- 
diction of  the  said  court,  to  cheat  and  defraud  the  said  S.  N.  of 
the  said  valuable  security  and  order  for  payment  of  money  in 
this  count  mentioned,  the  said  sums  of  money  in  this  count 
payable,  and  secured  by  and  upon  the  said  valuable  security 
and  order  for  the  payment  of  money  in  this  count  mentioned, 
being  then  and  there,  to  wit,  at  the  time  of  the  making  of  the 
said  last  mentioned  false  pretences,  due  and  unsatisfied  to  the 
said  S.  !N".,  the  proprietor  and  owner  of  the  same ;  whereas,  in 
truth  and  in  fact,  the  said  W.  J.  had  not  theretofore,  and  before 
the  making  of  the  said  false  pretences  by  the  said  W.  J.  in  this 
count  mentioned,  purchased  for  himself  a  certain  number  of 
sheep,  of  the  value  of  five  hundred  pounds,  for  which  the  said 
W.  J.  had  to  pay  at  the  bank  of  Messieurs  Pockington  and 
Company,  on  the  day  and  year  last  aforesaid,  and  in  this  count 
mentioned,  the  said  sum  of  five  hundred  pounds,  which  said  last 
mentioned  false  pretences  the  said  W.  J.,  at  the  time  of  the 
making  thereof,  well  knew  to  be  false ;  to  the  great  damage, 
injury,  and  deception  of  the  said  S.  il.,  and  in  fraud  of  the  said 
S.  ^N".,  to  the  evil  example  of  all  others  in  the  like  case  oflend- 
ing  ;  contrary  to  the  statute  in  that  case  made  and  provided,  and 
against  the  peace,  etc. 
560 


FALSE    PRETENCES.  (556) 

(556)  Pretence  that  a  certain  draft  for  $7700,  drawn  by  a  house  in 
Charleston  on  a  house  in  Boston,  which  the  defendant  exhib- 
ited to  the  prosecutor,  had  been  protested  for  non-payment ; 
that  the  defendaiit  had  had  his  pocket  cut,  and  his  pocket-book, 
containing  $195,  stolen  from  it ;  that  a  draft  drawn  by  a  per- 
son in  Philadelphia,  ivhich  the  defendant  showed  the  prosecu- 
tor, had  been  received  by  the  defendant  in  exchange  for  the 
protested  draft,  and  that  the  defendant  expected  to  receive  the 
money  on  the  last  mentioned  draft. {m) 

That  E.  IL,  late,  etc.,  being  a  person  of  an  evil  disposition,  ill- 
name  and  fame,  and  of  dishonest  conversation,  and  devising  and 
intending  b}''  unlawful  ways  and  means  to  obtain  and  get  into 
his  hands  and  possession  the  moneys,  goods,  chattels,  and  eftects 
of  the  honest  and  good  people  of  the  state  of  New  York,  to 
maintain  his  idle  and  profligate  course  of  life,  on,  etc.,  at,  etc., 
with  intent  to  cheat  and  defraud  one  A.  B.,  did  then  and  there 
unlawfully,  knowingly,  and  designedly  falsely  pretend  and  rep- 
resent to  the  said  A.  B.,  that  a  certain  draft  for  seven  thousand 
seven  hundred  dollars,  purporting  to  have  been  drawn  by  a  Mr. 
E.  of  Charleston  on  a  house  in  Boston  (and  which  the  said  E. 
H.  then  and  there  exhibited  to  the  said  A.  B.),  had  been  pro- 
tested for  non-payment;  that  he,  the  said  E.  H.,  had  his  pocket 
cut,  and  his  pocket-book,  containing  one  hundred  and  ninety- 
five  dollars,  stolen  therefrom,  and  that  he  had  got  the  pocket- 
book  subsequently  at  the  police  office  in  the  city  of  New  York, 
but  no  money  ;  that  a  certain  other  draft  for  six  thousand  five 
hundred  dollars,  drawn  on  a  Mr.  T.  of  Philadelphia  (which  said 
E.  H.  then  and  there  exhibited  to  the  said  A.  B.),  had  been 
received  in  exchange  by  him  the  said  E.  11.  for  the  protested 
draft  as  aforesaid ;  and  that  the  said  E.  H.  expected  to  receive 
the  money  on  the  said  last  mentioned  draft ;  and  the  said  A.  B,, 

(m)  People  v.  Hale,  1  Wheel.  C.  C.  174.  This  count  pui-ports  to  have  been 
"  settled"  by  Mr.  Maxwell,  the  then  district  attorney  of  New  York.  Tlie  oU'ence 
is  set  forth  with  sufficient  particularity,  witli  the  exception  of  tlie  last  assignment 
of  pretence,  "that  defendant  expected  to  receive  the  money,"  etc.,  which  iiad  it 
stood  alone  would  have  been  insufficient  to  have  sustained  a  verdict.  It  does  not 
appear  from  the  report  whether  any  exception  was  taken  to  tlu;  indictment,  the 
chief  point  in  the  case,  so  far  as  the  syllabus  is  concerned,  being  the  declaration 
of  Recorder  Riker,  that  "  the  court  was  always  willing  to  hear  what  could  be 
alleged  in  favor  of  a  prisoner,  in  arrest  of  judgment." 

VOL.  I.— 36  561 


(556)  OFFENCES    AGAINST    PROPERTY. 

then  and  there  believing  the  said  false  pretence  and  representa- 
tion so  made  as  aforesaid  by  the  said  E.  H.,  and  being  deceived 
thereby,  was  induced  by  reason  of  the  false  pretence  and  repre- 
sentation, so  made  as  aforesaid,  to  deliver,  and  did  then  and 
there  deliver  to  the  said  E.  H.  thirty  pieces  of  silver  coin,  called 
dollars,  of  the  value  of  one  dollar  each  ;  ten  promissory  notes 
for  the  payment  of  five  dollars  each,  and  of  the  value  of  five 
dollnrs  each,  then  and  there  being  due  and  unsatisfied;  five 
other  promissory  notes  for  the  payment  of  three  dollars  each, 
and  of  the  value  of  three  dollars  each,  then  and  there  being  due 
and  unsatisfied,  of  the  proper  moneys,  goods,  chattels,  and  efiects 
of  the  said  A.  B. ;  and  the  said  E.  H.  did  then  and  there  receive 
and  obtain  the  said  promissory  notes  and  money  of  the  said  A. 
B.,  of  the  proper  moneys,  goods,  chattels,  and  effects  of  the  said 
A.  B.,  by  means  of  the  false  pretence  and  representation  afore- 
said, and  with  intent  to  cheat  and  defraud  the  said  A.  B.  of  the 
said  promissory  notes  and  money;  whereas,  in  truth  and  in  fact, 
the  said  E.  H.  had  not  any  draft  for  six  thousand  seven  hun- 
dred dollars,  drawn  by  Mr.  E.  of  Charleston  on  a  house  in  Bos- 
ton, and  no  such  draft  had  been  protested;  and  whereas,  in 
truth  and  in  fact,  the  said  E.  H.  had  not  been  robbed  of  any 
money,  and  never  did  receive  any  pocket-book  from  the  police 
ofiice  which  had  been  stolen  from  him ;  and  whereas,  in  truth 
and  in  fact,  no  other  draft  for  six  thousand  five  hundred  dollars, 
drawn  on  a  Mr.  T.  of  Philadelphia,  had  ever  been  received  by 
him,  the  said  E.  H.,  in  exchange  for  the  said  first  mentioned 
draft;  and  whereas,  in  truth  and  in  fact,  both  drafts  exhibited 
by  the  said  E.  H.  as  aforesaid  to  the  said  A.  B,  were  forged  and 
false,  and  the  said  E.  H.  never  expected  to  receive  any  money 
by  virtue  thereof  from  the  persons  on  whom  they  purported  to 
be  drawn,  and  which  the  said  E.  H.  then  and  there  well  knew ; 
and  whereas,  in  fact  and  in  truth,  the  pretence  and  representa- 
tion so  made  as  aforesaid  by  the  said  E.  H.  to  the  said  A.  B. 
was  in  all  respects  utterly  false  and  untrue,  to  wit,  on,  etc.; 
and  whereas,  in  fact  and  in  truth,  the  said  E.  H.  well  knew  the 
said  pretence  and  representation,  so  made  by  him  as  aforesaid 
to  the  said  A.,  B.,  to  be  utterly  false  and  untrue  at  the  time  of 
making  the  same.  And  the  jury  aforesaid,  etc.,  do  further  pre- 
sent, that  the  said  E.  H.,  by  means  of  the  false  pretence  aforesaid, 
562 


FALSE   PRETENCES.  (556rt) 

on,  etc.,  at,  etc.,  unlawfully,  falsely,  knowingly,  and  designedly 
did  receive  from  the  said  A.  B.,  of  the  proper  moneys,  goods, 
chattels,  and  effects  of  the  said  A.  B.,  with  intention  to  defraud 
him  of  the  same,  against,  etc.,  and  against,  etc.  {Conclude  as  in 
hook  1,  chapter  3.) 

(556a)  False  pretence  of  possessing  halves  of  certain  hank  notes. 

That  M.  M.,  etc.,  at,  etc.,  did  heretofore,  to  wit,  on,  etc., 
send  through  the  post  to  one  J.  O.,  residing,  etc.,  a  written 
order  and  request  note  for  the  delivery  to  her,  the  said  M.  M., 
of  certain  quantities  of  tea  and  sugars  of  the  goods  and  chattels 
of  the  said  J.  0.,  and  together  wdth  said  written  order  and  re- 
quest note  the  said  M.  M.  then  sent  certain,  to  wit,  two  halves 
of  hank  notes  hy  way  of  payment  for  a  sum  of  £2  for  the  goods 
aforesaid.  And  the  jurors  aforesaid,  upon  their  oath,  do  far- 
ther say  and  present,  that  the  said  M.  M.,  on  the  day  in  the 
year  aforesaid,  unlawfully  and  knowingly  did  falsely  pretend  to 
the  said  J.  0.  that  she  then  had  in  her  custody  and  procure- 
ment for  the  satisfaction  of  the  said  J.  0.  certain  halves  of  bank 
notes,  being  the  proper  and  corresponding  halves  of  the  bank 
notes  so  as  aforesaid  sent  by  the  said  M.  M.  to  J.  0.,  and  that 
the  same  would  in  due  course  be  sent  by  M.  M.  to  J.  0.,  by 
which  said  false  pretences  the  said  M.  M.  then  unlawfully  did 
obtain  from  the  said  J.  0.  certain,  to  wit,  ten  pounds  weight  of 
tea  and  iifty-six  pounds  weight  of  sugar  of  the  goods  and  chat- 
tels of  the  said  J.  0.,  with  intent  to  defraud  ;  whereas,  in  truth 
and  in  fact,  the  said  M.  M.  had  not  then  in  her  custody  or  pro- 
curement, for  the  satisfaction  of  the  said  J.  0.,  the  said  halves 
of  bank  notes,  being  the  proper  and  corresponding  halves  of  the 
halves  of  bank  notes  so  as  aforesaid  sent  by  M.  M.  to  J.  0.,  as 
she  did  then  so  falsely  pretend  to  J.  0.,  and  M.  M.  then  well 
knew  the  said  pretences  to  be  false,  against,  etc.(?i)  {Conclude 
as  in  hook  1,  chapter  3.) 

(?i)  In  two  other  counts  the  traverser  was  similarly  indicted  for  sending  halt" 
notes  to  J.  B.  and  H.  M.  respectively.  In  each  count,  by  direction  of  the 
court,  the  words  "  or  procurement"  were  struck  out.  Evidence  was  given  by 
J.  B.,  H.  M.,  and  several  other  persons  to  the  etfect  that  the  prisoner  had  writ- 
ten letters  to  the  witnesses,  inclosing  half  notes,  and  re(iuesting  that  goods  might 
be  forwarded  to  her.  The  goods  were  sent,  but  the  traverser  would  not  send  the 
second  half  notes.  Several  of  the  witnesses  held  the  corresjtonding  halves  of  the 
notes  sent  to  the  others.     The  police  constables  who  an-ested  tlie  prisouer  found 

563 


(557)  OFFENCES  AGAINST  PROPERTY. 

(557)  Pretence  that  a  certain  watch  sold  hy  defendant  to  jJrosecutor 

was  gold.{o) 

That  A.  B.,  etc.,  contriving  and  intending  one  C.  D.,  by  false 
pretence  to  cheat  and  defraud  of  his  money  and  property  [and 
hy  means  of  divers  false  pretences  to  be  hereinafter  more  partic- 
ularly described,  to  sell  and  dispose  of  as  a  genuine  gold  watch, 
to  tlie  said  C.  D.,  a  certain  watch  of  base  and  spurious  metal], 
unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to 
said  C.  D.,  that  the  said  watch  which  he  the  said  A.  B,  then 
and  there  had  was  a  gold  watch  [and  that  he  the  said  A.  B.  did 
thereupon  etiect  a  sale  of  the  said  watch  to  the  said  C.  D.  for 

several  half  notes  with  her.  At  the  conclusion  of  the  case  for  the  crown  counsel 
for  the  prisoner  submitted  that  the  indictment  could  not  be  maintained,  as  the 
pretence  must  be  of  an  existing  fact,  and  here  the  goods  had  been  obtained  upon 
a  promise  to  send  the  other  halves.  Counsel  for  the  crown  said  that  there  was 
evidence  to  sustain  the  count  laid  that  she  had  the  coi-responding  lialves  in  her 
custody.  The  case  was  left  to  the  jury,  who  found  tlie  traverser  guilty.  The 
learned  judge  (Lawson,  J.)  then  stated  a  case  for  the  court,  the  (juestiou  being, 
'•  if  the  court  should  be  of  opinion  that  the  evidence  sustained  that  count  of  the 
indictment  which  alleged  a  pretence  that  she  luul  the  half  notes  in  lier  custody, 
the  conviction  to  be  affirmed  ;  if  not,  the  conviction  to  be  (juashed."  The  con- 
viction was  affirmed  by  the  Irish  court  for  crown  cases  reserved.  R.  v.  Murphy, 
13  Cox,  C.  C.  298  (187G). 

(o)  This  indictment  is  based  generally  on  that  in  Com.  v.  Strain,  10  Met.  521, 
the  allegations  in  brackets  being  introduced.  "  The  case  at  bar,"  said  the  court, 
"  if  confined  in  its  proof,  on  the  trial  by  tlie  jury,  to  the  mere  allegations  in  the 
indictment,  would  be  certainly  quite  bald.  The  indictment  does  not  allege  any 
bargain,  nor  any  eoUoipium  as  to  a  bargain  for  a  watch  ;  nor  any  proposition  of 
Blake  to  buy,  or  of  the  defendant  to  sell  a  watch  ;  nor  any  delivery  of  the  watch, 
as  to  which  the  false  pretences  were  made,  into  the  possession  of  Blake,  as  a 
consideration  for  the  money  he  paid  the  dei'endant. 

"  Jt  seems  to  us,  that  where  money  or  other  property  is  obtained  by  a  sale  or 
exchange  of  i)ro})erty,  effected  by  means  of  false  pretences,  such  sale  or  ex- 
change ought  to  be  set  forth  in  the  indictment ;  and  that  the  false  pretences 
should  be  alleged  to  have  been  made  with  a  view  to  effect  such  sale  or  exchange, 
and  that  by  reason  thereof  tlie  party  was  induced  to  buy  or.  exchange,  as  the 
case  may  be. 

"  Although  the  language  of  the  Rev.  Sts.  ch.  12C,  §  32,  is  very  broad,  yet  all 
will  agree  that,  in  its  practical  application,  the  false  declaration  must  be  made 
to  a  party  who  has  an  interest  in  the  matter,  and  is  aifected  injuriously  by  the 
falsehood.  We  go  further,  however,  and  hold  that  in  a  case  like  the  present, 
where  the  alleged  false  pretences  were  injurious  only  by  inducing  another  person 
to  buy  the  article  as  to  wjiich  such  false  representations  were  made,  such  sale  or 
offer  for  sale  must  be  set  out  as  part  of  the  facts  relied  upon,  and  as  a  material 
allegation  in  the  description  of  the  offence. 

''  Upon  the  whole  matter,  the  court  arc  of  opinion  that  this  indictment  does 
not  plainly  and  distinctly  set  forth  the  offence  intended  to  be  charged ;  that  it 
does  not  contain  an  averment  of  those  material  facts  which  the  government  would 
be  bound  to  prove,  before  they  could  ask  for  a  conviction ;  and  that,  for  tliis 
cause,  the  judgment  should  be  arrested." 

564 


FALSE   PRETENCES.  (557a) 

the  sum  of,  etc.,  of  the  money  and  property  of  the  said  C.  D., 
he  the  said  C.  D.  being  induced  to  purchase  said  watch  by  the 
false  pretence  above  mentioned],  by  means  whereof,  said  A.  B. 
then  and  there  unlawfully,  knowingly,  and  designedly  did  ob- 
tain from  said  C.  D.  the  said  {setting  forth  the  money  obtained)^  of 
the  money  and  property  of  him  the  said  C.  D.  as  aforesaid, 
with  intent  him  the  said  C.  D.  then  and  there  to  cheat  and  de- 
fraud of  the  same;  Avhereas,  in  truth  and  in  fact,  said  watch 
was  not  then  and  there  a  gold  watch,  but  was  a  watch  of  base 
and  spurious  metal ;  and  said  A.  B.  then  and  there  well  knew 
that  the  same  was  not  a  gold  watch,  but  was  a  watch  of  base 
and  spurious  metal  as  aforesaid ;  to  the  great  damage  and  de- 
ception of  him  the  said  C.  D.,  against,  etc.,  and  contrary,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(557a)  Pretence  that  a  chain  was  of  gold.{p) 

The  jurors  for,  etc.,  upon  their  oath  present,  that  J.  A.,  on, 
etc.,  unlawfully,  knowingly,  and  designedly  did  falsely  pretend 
to  one  T.  W.,  that  a  certain  Albert  chain  which  he  the  said  J. 
A.  then  asked  the  said  T.  W.  to  buy  from  him  the  said  J.  A., 
was  of  fifteen-carat  gold,  and  that  he  the  said  J.  A.  was  tben  a 
draper,  and  that  the  said  chain  had  been  made  expressly  for 
him  the  said  J.  A. ;  by  means  of  which  false  pretences  the  said 
J.  A.  did  then  unlawfully  obtain  from  the  said  T.  W.  a  certain 
8um  of  money,  to  wit,  £5,  and  a  certain  other  Albert  chain  of 
the  value  of  7s.  ChL,  with  intent  to  defraud;  whereas,  in  truth 
and  in  fact,  the  said  Albert  chain  which  he  the  said  J.  A.  then 
asked  the  said  T.  W.  to  buy  from  him  the  said  J.  A.,  as  afore- 
said, was  not  of  fifteen-carat  gold  ;  and  whereas,  in  truth  and 
in  fact,  he  the  said  J.  A.  was  not  then  a  draper ;  and  whereas,  in 
truth  and  in  fact,  the  said  chain  had  not  been  made  expressly 
for  him  the  said  J.  A.,  as  he  the  said  J.  A.  well  knew  at  the 
time  when  he  did  so  falsely  pretend  as  aforesaid;  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

{p)  Sustained,  R.  v.  Ardley,  12  Cox,  C.  C.  23  ;  L.  R.  1  C.  C.  301  ;   WIi.  Cr. 
L.  8th  ed.  §  1157. 

565 


(559)  OFFENCES  AGAINST  PROPERTY. 

(558)  Obtaining  money  by  means  of  a  false  warranty  of  the  iveight 

of  goods,  [q) 

That  A.  B.,  late  of  B.,  in  the  county  of  S.,  trader,  on  the  first 
day  of  June  in  the  j-ear  of  our  Lord  at  B.  aforesaid,  in  the 

county  aforesaid,  unhiwfully,  knowingly,  and  designedly  did 
falsely  pretend  to  C.  D.  that  a  certain  quantity  of  coals,  which 
the  said  A.  B.  then  and  there  delivered  to  the  said  C.  D.,  weighed 
one  ton  and  ten  hundred  weight,  and  that  the  said  coals  were 
then  and  there  worth  the  sum  of  fifteen  dollars;  b3'  means  of 
which  said  false  pretences  the  said  A.  B.  did  then  and  there  un- 
lawfully, knowingly,  and  designedly  obtain  from  the  said  C.  D. 
the  sum  of  fifteen  dollars,  of  the  money  of  the  said  C.  D.,  with 
intent  then  and  there  to  cheat  and  defraud  the  said  C.  D.  of  the 
same.  Whereas,  in  truth  and  in  fact,  the  said  coals  did  not  weigh 
one  ton  and  ten  hundred  weight  ;  and  whereas,  in  truth  and  in 
fact,  the  said  coals  were  not  worth  the  sum  of  fifteen  dollars  ; 
and  whereas,  in  truth  and  in  fixct,  the  said  coals  weighed  only 
one  ton  and  five  hundred  weight,  and  were  not  worth  more  than 
twelve  dollars,  as  the  said  A.  B.  then  and  there  well  knew  ;  con- 
trary to  the  form  of  the  statute  in  sucli  case  made  and  provided. 

(559)  Obtaining  money  by  a  false  warranty  of  goods.{r) 

That  A.  B.,  late  of  B.  in  the  county  of  S.,  trader,  on  the  first 
day  of  June,  in  the  year  of  our  Lord  at  B.  aforesaid  in 

the  county  aforesaid,  unlawfully,  knowingly,  and  designedly  did 
falsely  pretend  to  C.  D.,  that  a  watch  then  and  there  produced 
by  the  said  A.  B.,  and  offered  for  sale  to  the  said  C.  D.,  was  a 
silver  watch,  and  was  then  and  there  of  the  value  of  fifty  dollars  ; 
by  means  of  which  said  false  pretences  the  said  A.  B.  did  then 
and  there  unlawfully,  knowingly,  and  designedly  obtain  from 
the  said  C.  D.  the  sum  of  fifty  dollars,  of  the  money  of  the  said 
0.  D.,  with  intent  tiien  and  there  to  cheat  and  defraud  the  said 

[(])  "  AUhough  it  was  formerly  supposed  that  such  a  case  as  this  was  not  a 
false  pretence  within  the  statute,  it  is  quite  clear  that  it  is  ;  and  there  never  was, 
in  fact,  any  express  decision  to  the  contrary  ;  the  supposed  case  of  R.  o.  Read 
(7  C.  &  P.  848),  on  which  such  a  notion  was  founded,  never  having  been  con- 
sidered by  the  judges."  Lord  Denman,  C.  J.,  in  R.  v.  Ilaniilton,  9  Ad.  &  El. 
N.  S.  271  ;   2  Cox,  C.  C.  11.      See  Wh.  Cr.  L.  8th  ed.  §§  11«1,  etc. 

(?■)  R.  v.  Ball,  C.  &  M.  249.     But  see  note  to  557,  supra. 

566 


FALSE   PRETENCES.  (559a) 

C.  D.  of  the  same.  Whereas,  in  truth  and  in  fact,  the  said 
watch  was  not  a  silver  watch,  nor  was  the  same  then  and  there 
of  the  value  of  fifty  dollars,  as  the  said  A.  B  then  and  there 
well  knew  ;  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  etc. 

(559a)  Pretence  that  a  certain  brick-field  was  good  and  profitable. 

That  E.,  etc.,  on,  etc.,  at,  etc.,  entered  into  negotiation  with  B. 
for  the  letting  by  the  said  E.  and  the  hiring  by  the  said  B.  of  a 
certain  field  belonging  to  E.,  and  referred  to  as  "the  ten  acre 
field  ;"  and  that  E.,  etc.,  intending  to  cheat  and  defraud,  etc.,  on, 
etc.,  did  unlawfully,  knowingly,  and  designedly,  falsely  pretend 
to  the  said  B.,  that  the  said  field  then  was  a  good  and  profitable 
brick-field,  that  the  said  E.  had  made  a  profit  of  £400  upon  a 
certain  clump  of  bricks  then  standing  in  the  said  field,  and 
which  had  all  been  made  from  the  earth  of  the  said  field  mixed 
with  marsh  mud;  that  one  B.,  who  was  then  upon  the  said 
field,  was  then  willing  and  desirous  to  hire  the  said  field  from 
him  the  said  E.;  that  the  earth  of  the  said  field,  when  mixed 
with  marsh  mud,  was  then  capable  of  yielding  bricks  as  good 
as  those  in  the  said  clump,  and  that  he,  the  said  E.,  had  then 
recently  been  carrying  on  a  profitable  business  by  the  manufac- 
ture of  bricks  from  the  earth  of  the  said  field  mixed  with  marsh 
mud.  By  means  of  which  said  false  pretences  the  said  E.  did 
then  and  there,  with  intent  to  defraud,  unlawfully,  knowingly, 
and  fraudulently  obtain  of  and  from  the  said  B.,  a  certain  valu- 
able security,  to  wit,  an  agreement  signed  by  the  said  B.,  in  the 
words  and  figures  following,  that  is  to  say  {setting  oat  an  agree- 
ment by  E.  to  give  a  lease  of  the  brick-field^  and  by  -S.,  to  accept 
the  same  with  all  usual  covenants  for  brick-Jleld,  macldnery^  and 
plant),  the  machinery  and  plant  at  the  yearly  rent  of  £100, 
and  £5  per  acre  surface  rent,  and  Is.  M.  per  thousand  for  all 
bricks  moulded,  four  millions  to  be  made  each  year  or  paid  for, 
and  as  many  more  at  l.s.  Sd.  per  thousand  as  B.  chooses;  the 
rent  to  be  paid  quarterly,  commencing  on,  etc.,  B.  taking  posses- 
sion at  once;  the  term  to  be  seven  years.  Whereas,  in  truth 
and  in  fact,  the  said  field  was  not  then  a  good  or  profitable 
brick-field ;  and  whereas,  in  truth  and  fact,  the  said  E.  had 
not  made  a  profit  of  £400,  as  he  so  falsely  pretended  as  aforesaid, 

567 


(560)  OFFENCES  AGAINST  PROPERTY. 

upon  the  said  clump  of  bricks  then  standing  and  being  in  the 
said  field  ;  and  whereas,  the  said  bricks  in  the  said  clump  of 
bricks  standing  in  the  said  field  had  not  been  all  made  from 
the  earth  of  the  said  field  mixed  with  marsh  mud ;  and 
whereas,  the  said  B.,  who  was  upon  the  said  field  when  the 
said  E.  so  falsely  pretended  as  aforesaid,  was  not  then  willing 
or  desirous  to  hire  the  said  field  from  him  the  said  E. ;  and 
whereas  the  earth  of  the  said  field,  when  mixed  with  marsh 
mud,  was  not  then,  as  the  said  E.  knew,  capable  of  yielding 
bricks  as  good  as  those  in  said  clump;  and  whereas,  the  said 
E.  had  not  then  recently  been  carrying  on  a  profitable  business 
by  the  manufacture  of  bricks  from  the  earth  of  the  said  field, 
mixed  with  marsh  mud,  as  he  so  falsely  pretended  as  aforesaid.(s) 
{Conclude  as  in  hook  1,  chapter  3.) 

(560)  Falsely  pretending  that  goods  were  of  a  'particular  quality. {i) 

The  jurors,  etc.,  upon  their  oath  present,  that  A.  B.,  late  of 
B.,  in  the  county  of  S.,  trader,  at  the  time  of  the  making  of  the 
false  pretences  by  him  hereinafter  mentioned,  had  in  his  posses- 
sion and  ottered  for  sale  divers  pounds  weight  of  cheese  of  little 
value  and  of  inferior  quality  ;  and  also  had  in  his  possession 
divers  pieces  of  cheese  called  "  tasters,"  of  good  flavor,  taste,  and 
quality.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
furtiier  present,  that  the  said  A.  B.,  being  so  thereof  possessed, 
on  the  first  day  of  June,  in  the  year  of   our  Lord  at  B. 

aforesaid,  in  the  county  aforesaid,  unlawfully,  knowinglj^  and 
designedly  did  falsely  pretend  to  one  C.  D.,  that  the  said  pieces 
of  cheese  called  "  tasters,"  which  the  said  A.  B.  then  and  there 
delivered  to  the  said  C.  D.,  were  part  of  the  cheese  which  the 
said  A.  B.  then  and  there  oiiered  for  sale,  and  that  the  said  last 
mentioned  cheese  was  of  good  and  excellent  quality,  flavor,  and 
taste,  and  that  every  pound  weight  of  the  said  cheese  so  ofiered 
for  sale  by  the  said  A.  B.  was  of  the  value  of  twelve  cents;  by 
means  of  which  said  false  pretences  the  said  A.  B.  did  then  and 
there  unlawfully,  knowingly,  and  designedly  obtain  from  the  said 
C.  D.  certain  money,  to  wit,  the  sum  of  twenty  dollars,  of  the 
moneys  of  the  said  C.  D.,  with  intent  then  and  there  to  cheat 

(.s)  R.  V.  English,  12  Cox,  C.  C.  171. 

(<)  See  R.  V.  Abbott,  1  Den.  C.  C.  273  ;   2  Cox,  C.  C.  430;   2  C.  &  K.  630. 

568 


FALSE    PRETENCES.  (^61) 

and  defraud  the  said  C.  D.  of  the  same.  Whereas,  in  truth  and 
in  fact,  the  said  pieces  of  cheese  called  "  tasters,"  which  the  said 
A.  B.  delivered  to  the  said  C.  D.,  were  not  part  of  the  cheese 
which  the  said  A.  B.  offered  for  sale  ;  and  whereas,  in  truth  and 
in  fact,  the  said  cheese  offered  for  sale  was  not  of  good  and 
excellent  quality,  flavor,  and  taste;  and  whereas,  in  truth  and 
in  fact,  every  pound  weight  of  the  said  cheese  offered  for  sale 
by  the  said  A.  B.  was  not  of  the  value  of  twelve  cents,  as  the 
said  A.  B.  then  and  there  well  knew  ;  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

[For  an  indictmejit  for  falsely  averring  ownership  of  jycrsoyial 
property,  and  thereby  obtaining  money  on  mortgage  for  same,  see 
Com.  v.  Lincoln,  11  Allen,  233.] 

(561)  Pretence  that  a  cei-tain  horse  to  be  sold,  etc.,  loas  sound,  and 
was  the  horse  called  '•'•  Charley. '\u) 

That  the  said  M.,  on,  etc.,  contriving  and  intending  knowingly 
and  designedly  by  false  pretences  to  cheat  and  defraud  one  J.  L. 
of  his  moneys,  goods,  wares,  and  merchandise,  and  other  things, 
did,  knowingly  and  designedly,  pretend  to  said  L.,that  a  certain 
horse  which  he  the  said  M.  then  wished  and  offered  to  exchange 
with  said  L.  for  a  certain  colt  and  Ave  dollars  in  money,  was 
then  and  there  a  sound  horse,  and  was  the  horse  called  the  C, 
the  said  horse  called  the  C.  being  well  known  to  said  L.  by  true 
and  correct  representations  which  he  had  received,  although  he 
had  not  seen  said  horse  called  the  C,  etc.,  by  which  false  pre- 
tences said  M.  then  and  there  induced  the  said  L.  to  exchange 
with  and  deliver  to  said  M.  his  said  colt  and  live  dollars  in 

(?/)  This  is  the  substance  of  an  indictment  sustained  in  ]\Iaino,  in  State  v. 
Mills,  17  Me.  24.  "The  horse,  called  the  Charley,"  said  the  court,  "  ini^jht 
liave  had  the  reputation  of  possessing  qualities,  which  rendereil  it  desirable  for 
the  party  injured  to  become  the  owner  of  him.  The  defendant  proiluced  a  horse, 
which  he  affirmed  was  the  Cluirlei/.  It  was  a  false  pretence,  fraudulently  made, 
for  the  purpose  of  procuring  a  colt  and  money  from  another.  The  attempt  suc- 
ceeded. These  facts  the  jury  have  found.  It  is  a  case  literally  within  the  stat- 
ute;  and  we  do  not  perceive  why  it  is  not  within  the  mischief  it  was  intended 
to  punish.  To  sustain  it  would  not  be  going  further  than  precedents  warrant. 
If  the  construction  should  be  narrowed  to  cases,  which  might  be  guarded  against 
by  common  prudence,  the  weak  and  imbecile,  the  usual  victims  of  these  pre- 
tences, would  be  left  unprotected.  It  may  not  be  easy  to  lay  down  any  general 
rule,  with  proper  qualifications  and  limitations ;  but  in  the  case  before  us,  we  are 
of  opinion  that  the  oll'ence  charged  has  been  committed."  See  Wh.  Cr.  L.  8th 
ed.  Sii  928,  1130,  1155,  117G,  1218. 

^^  569 


(562)  OFFENCES  AGAINST  PROPERTY. 

money,  for  said  horse  falsely  represented  as  aforesaid  to  be  the 
C,  etc.,  and  whereas,  in  truth  and  in  fact,  the  said  horse  which 
said  M.  offered  to  and  exchanged  with  said  L.,  and  which  he 
represented  as  a  sound  horse,  and  as  the  horse  called  the  C, 
was  not  a  sound  horse,  and  was  not  the  horse  called  the  C,  but 
was  a  diiierent  horse,  and  unsound,  and  wholly  worthless,  etc. 

(562)  Pretence  thai  a  horse  and  phaeton  wei-e  the  property  of  a  lady 
then  shortly  before  deceased^  and  that  the  horse  was  kind,  etc.{v) 

That  T.  K.  the  elder,  etc.,  and  S.  K.,  etc.,  intending,  etc.,  on, 
etc.,  at,  etc.,  unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  the  said  Gr.  W.  F.,  that  a  certain  carriage,  to  wit,  a 
carriage  called  a  phaeton,  and  a  certain  mare  and  a  certain  geld- 
ing, which  they  the  said  defendants  then  and  there  offered  for 
sale  to  the  said  G.  W.  F.,  had  then  been  the  property  of  a  lady 
then  deceased,  and  were  then  the  property  of  her  sister,  and 
were  not  then  the  property  of  any  horse-dealer,  and  were  then 
the  property  of  a  private  person,  and  that  the  said  mare  and  the 
said  gelding  were  then  respectively  quiet  to  ride  and  drive,  and 
quiet  and  tractable  in  every  respect,  ^y  means  of  which  said 
false  pretences  the  said  defendants  did  then  and  there  unlawfully, 
knowingly,  and  designedly  obtain  from  the  said  G.  W.  F.  a  cer- 
tain valuable  security,  to  wit,  an  order  for  the  payment  of  one 
hundred  and  sixty-eight  pounds  (being  then  and  there  the  prop- 
erty of  the  said  G.  W.  F.),  with  intent  then  and  there  to  cheat 
and  defraud  him,  the  said  G.W.  F.,  of  the  same.  "Whereas,  in 
truth  and  in  fact,  the  said  carriage,  the  said  mare,  and  the  said 
gelding  had  not  then  been  the  property  of  a  lady  then  deceased, 
and  were  not  then  the  property  of  her  sister;  and  whereas,  in 
truth  and  in  fact,  the  said  carriage,  the  said  mare,  and  the  said 
gelding  were  the  property  of  a  horse-dealer;  and  whereas,  in 
truth  and  in  fact,  the  said  carriage,  the  said  mare,  and  the  said 
gelding  were  not  then  the  property  of  a  private  person ;  and 
whereas,  in  truth  and  in  fact,  the  said  mare  and  the  said  gelding 
were  not  then  quiet  to  ride  and  drive,  and  were  not  then  quiet 
and  tractable  in  every  respect ;  and  whereas  the  said  defendants 
then  and  there  well  knew  that  the  said  carriage,  the  said  mare, 

{n)  11.  ?'.  Kenrick,  5  Q  B.  49,  where  this  count  appears  to  be  sustained.  See 
AVh.  Cr.  L.  Sth  ed.  §§  1161,  1180,  1198. 

570 


FALSE    PRETENCES.  (564) 

and  the  said  geldiiio;  had  not  then  been  the  property  of  a  lady 
then  deceased,  and  were  not  then  the  property  of  lier  sister  ;  and 
also  then  and  there  well  knew  that  the  same  were  then  the  prop- 
erty of  a  horse-dealer,  and  that  the  same  were  not  then  the 
property  of  a  private  person,  and  that  tiie  said  mare  and  the 
said  gelding  were  not  then  quiet  to  ride  and  drive,  and  were 
not  then  quiet  and  tractable  in  every  respect ;  to  the  great  dam- 
age and  deception  of  the  said  G.  W.  F.,  to  the  evil  example, 
etc.,  against,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(533)  Second  count.     Like  the  first,  except  that  the  offering  for  sale 
was  alleged  to  have  been  by  T.  K.  the  elder,  only. 

(564)  Other  pj'ctence  as  to  the  value  and  history  of  a  horse,  which  the 
jprisoners  sold  to  the  -prosecutor. {w) 

The  jurors,  etc.,  upon  their  oath  [)resent,  that  heretofore,  to 
wit,  at  the  time  of  the  commission  of  the  oftence  hereinafter  in 
this  count  mentioned,  one  R.  J.  T.  was  desirous  of  [)urchasing 
and  providing  himself  with  a  horse  which  should  be  sound  and 
quiet  in  harness  ;  and  that  J.  P.  B.,  late  of  the  parish  of  St. 
James,  Westminster,  in  the  county  of  Middlesex,  and  within 
the  jurisdiction  of  the  said  court,  laborer,  and  J.  P.,  late  of  the 
same  place,  laborer,  well  knowing  the  premises,  and  that  the 
said  R.  J.  T.  would  be  ready  to  purchase  of  and  from  any  re- 
spectable and  responsible  person  such  horse  as  aforesaid ;  and  that 
the  said  J.  P.  B.  and  J.  P.,  having  in  their  possession  a  certain 
horse,  much  under  the  value  of  three  hundred  pounds,  to  wit,  of 
the  value  of  one  hundred  pounds,  and  no  more,  and  then  being 
unsound;  and  the  said  J.  P.  B.  and  J.  P.,  wickedly  and  fraudu- 
lently intending  to  persuade  the  said  R.  J.  T.  to  deposit  with 
them,  the  said  J.  P.  B.  and  J.  P.,  a  large  sum  of  money  upon 
the  delivery  of  the  said  horse  to  the  said  R.  J.  T.  for.  trial  and 
approval  thereof,  and  under  color  of  their  readiness  and  willing- 
ness to  return  the  said  money,  subject  to  tlie  deduction  of  fifty 
])ounds,  in  case  the  said  horse  should  not  be  approved  of  by  the 
said  R.  J.  T.,  to  cheat  and  defraud  the  said  R.  J.  T.  of  the  same 
money  so  to   be  deposited  as  aforesaid,  on  the  seventh  day  of 

(ic)  3  Cox,  C.  C.  Appendix,  p.  xlix. 

571 


(564)  OFFENCES  AGAINST  PROPERTY. 

September,  in  the  year  of  our  Lord  at  the  parish  aforesaid, 

in  the  county  aforesaid,  and  within  the  jurisdiction  of  the  said 
court,  did  produce  the  said  horse  to  the  said  R.  J.  T.,  and  did 
then  and  there  unlawfully,  knowinglj^  and  desisrnedly  falsely 
pretend  to  the  said  R.  J.  T.,  that  the  said  J.  P.  B.  then  was  in 
the  wool  business  in  the  city  of  London  ;  that  the  said  horse 
then  belonged  to  a  brother  of  the  said  J.  P.  B.  then  abroad  ; 
that  the  said  J.  P.  B.  then  had  to  sell  the  said  horse  for  his  said 
brother;  that  the  said  horse  was  then  perfectly  sound  and  quiet 
in  harness,  and  had  then  been  used  to  run  with  another  horse  in 
harness,  which  had  been  sold  to  a  colonel.  By  means  of  which 
said  false  pretences  the  said  J.  P.  B.  and  J.  P.  did  then  and 
there  unlawfully,  knowingly,  and  designedly  fraudulently  ob- 
tain of  and  from  the  said  R.  J.  T.  one  piece  of  paper  of  the 
value  of  one  penny,  of  the  goods  and  chattels  of  the  said  R.  J. 
T.,  and  one  order  for  the  payment  of  money,  to  wit,  for  the  pay- 
ment of  the  sum  of  three  hundred  pounds,  and  of  the  value  of 
three  hundred  pounds,  then  being  the  property  of  the  said  R. 
J.  T.,  with  intent  then  and  there  to  cheat  and  defraud  him  of 
the  said  goods,  chattels,  and  order  respectively,  the  said  sum  of 
money  payable  and  secured  by  and  upon  the  said  order  being 
then  due  and  unsatisfied  to  the  said  R.  J.  T. ,  the  proprietor  of 
the  said  order;  whereas,  in  truth  and  in  fact,  the  said  J.  P.  B. 
was  not  then  in  the  wool  trade  in  the  city  of  London ;  and 
whereas,  in  truth  and  in  fact,  the  said  horse  did  not  belong  to 
a  brother  of  the  said  J.  P.  B.,  who  was  abroad  ;  and  whereas,  in 
truth  and  in  fact,  the  said  J.  P.  B.  had  not  then  to  sell  the  said 
horse  for  his  said  supposed  brother;  and  whereas,  in  truth  and 
in  fact,  the  said  horse  was  not  then  sound  or  quiet  in  harness, 
and  luid  not  then  been  used  to  run  witli  another  horse  which 
had  been  sold  to  a  colonel ;  all  of  which  said  false  pretences  the 
said  J.  P.  B.  and  J.  P.,  at  the  time  of  making  thereof  as  afore- 
said, well  knew  to  be  false;  to  the  great  damage  and  deception 
of  the  said  R,  J.  T.,  contrary  to  the  form  of  the  statute  iu  such 
case  made  and  provided,  and  against  the  peace,  etc. 
572 


FALSE    PRETENCES.  (565) 

(565)  Pretence  that  one  J.  P.,  of  the  city  of  Washington^  wanted  to 
buy  some  brandy^  etc.;  thai  said  J.  P.  kept  a  large  hotel  at 
Washington,  etc.,  that  defendant  was  sent  by  said  J.  P.  to 
purchase  brandy  as  aforesaid,  and  that  defendant  would  'jmy 
cash  therefor,  if  prosecutor  would  sell  him  the  sanie.{x)  First 
count. 

That  A.  S.,  late,  etc.,  being  an  evil  disposed  person,  with  intent 
to  and  contriving  and  intending  unlawfully,  fraudulently,  and 
deceitfully  to  cheat  and  defraud  J.  L.  and  P.  J.,  copartners  in 
trade,  under  the  firm  of  J.  L.  and  Company,  of  the  said  city  and 
county,  of  their  goods,  wares,  and  merchandises,  on,  etc.,  at,  etc., 
unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to 
the  said  J.  L.  and  P.  J.,  as  aforesaid,  that  one  J.  P.,  of  the  city 
of  Washington,  wanted  to  buy  some  brandy,  to  \\\t,  two  half 
pipes  of  brandy,  that  the  said  J.  kept  a  large  hotel  at  Washing- 
ton City  aforesaid,  that  he  the  said  A.  S.  was  sent  by  the  said  J.  P. 
to  purchase  brandy  as  aforesaid  for  him  (said  J.  P.  meaning), and 
he  the  said  A.  S.  would  pay  therefor  in  cash,  if  they  the  said  J. 
L.  and  P.  J.  would  sell  him  the  same;  by  which  said  false  pre- 
tences the  said  A.  S.  did  then  and  there,  to  wit,  on,  etc.,  at,  etc., 
unlawfully,  knowingly,  and  designedly  obtain  from  the  said  J. L. 
and  P.  J.,  as  aforesaid,  two  half  pipes  of  brandy,  of  the  value  of 
three  hundred  dollars,  of  the  goods,  wares,  and  merchandises  of 
the  said  J.  L.  and  P.  J.,  with  intent  then  and  there  to  cheat  and 
defraud  them  the  said  J.  L.  and  P.  J.  of  the  same ;  wdiereas,  in 
truth  and  in  fact,  the  said  A.  S.  was  not  then  sent  by  J.  P.  to 
purchase  such  brandy  as  aforesaid  for  him  or  any  other  person, 
and  the  said  J.  P.  did  not  want  to  buy  any  brandy  as  aforesaid, 
and  did  not  keep  a  hotel  at  Washington  City  as  aforesaid,  and 
the  said  A.  S.  did  not,  at  the  time  of  procuring  the  said  brandy 
so  as  aforesaid,  intend  to  pay  for  the  same  [insert  scienter),  to  the 
great  damage  and  deception  of  the  said  J.  L.  and  P.  J.,  to  the 

(x)  Com.  V.  Spring,  Oy.  &  Term.  City  and  County  of  Philadelphia.  Sec  3 
i'enn.  L.  J.  89.  The  defendant  was  convicted  and  sentence  passed.  The  aver- 
ment that  he  intended  to  pay,  in  the  ttrst  two  counts,  would  not  have  been  alone 
sutlicient,  but  as  it  was  connected  with  otiier  operative  pretences,  and  as  it  could 
be  disengaged  from  the  context  as  surjjlusage,  it  did  not  viti;ite  the  counts  in 
which  it  was  introduced.  The  omission  of  an  averment,  that  the  defendant 
knew  the  pretences  to  be  at  the  time  false,  is  more  questionable. 

573 


(567)  OFFENCES    AGAINST    PROPERTY. 

evil  example  of  all  others  in  like  cases  offending,  against,  etc., 
and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(566)  Second  count.  That  defendant  icas  yrquested  bi/  one  J.  P., 
ivho  kept  a  large  hotel  in  Washington  City,  to  -purchase  some 
brandy  for  said  J.  P.,  and,  that  if  prosecutor  icoidd  sell  de- 
fendant two  half  pipes  of  brandy^  defendant  ivoidd  pay  prose- 
cidor  cash  for  the  same  shortly  after  delivery. 

That  the  said  A.  S.,  being  such  person  as  aforesaid,  with  in- 
tent to  and  contriving  and  intending  unlawfull}',  fraudulently, 
and  deceitfully  to  ciieat  and  defraud  the  said  J.  L.  and  P.  J., 
copartners  as  aforesaid,  of  their  goods,  wares,  and  merchandises, 
on, etc., at,  etc., unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  the  said  J.  L.  and  P.  J.,  as  aforesaid,  that  lie,  the 
said  A.  S.,  was  requested  by  one  J.  P.,  who  kept  a  large  hotel  in 
Washington  City, to  purchase  some  brandy  for  him,  said  P. ;  and 
tliat  if  they,  the  said  J.  L.  and  P.  J.,  would  sell  him,  said  A.  S., 
two  half  pipes  of  brandy,  he  the  said  A.  S.  would  pay  for  the 
same  in  cash  shortly  after  delivery  thereof;  by  which  said  false 
pretences  the  said  A.  S.  did  then  and  there,  to  wit,  on  the  day 
and  year  last  aforementioned,  within  the  jurisdiction  of  the  said 
court,  unlawfully,  knowingly,  and  designedly  obtain  from  the 
said  J.  L.  and  P.  J.,  as  aforesaid,  two  half  pipes  of  brandy,  of 
value  of  three  hundred  dollars, of  the  goods,  wares,  and  merchan- 
dises of  the  said  J,  L.  and  P.  J.,  with  intent  then  and  there  to 
cheat  and  defraud  them,  the  said  J.  L.  and  P.  J.,  of  the  same; 
whereas,  in  truth  and  in  fact,  the  said  A.  S.  was  not  requested 
by  J,  P.  to  purchase  brandy  for  him,  said  P.,  and  said  P.  did  not 
keep  a  hotel  in  Washington  City,  and  the  said  A.  S.  did  not,  at 
the  time  of  procuring  the  said  brandy  as  aforesaid,  intend  to 
pay  for  the  same  as  aforesaid  {insert  scienter) ;  to  the  great 
damage  and  deception  of  the  said  J.  L.  and  P.  J.,  to  the  evil 
example  of  all  others  in  like  case  offending,  against,  etc.,  and 
against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 

(667)  Third  count.  That  defendant  had  been  requested  by  one  J.  P. 
to  purchase  for  hini  some  brandy^  that  he  {the  said  J.  P.)  kepi 
a  large  hotel  in  Washington,  etc. 

That  the  said  A.  S.,  being  such  person  as  aforesaid,  with  in- 
574 


FALSE    PRETENCES.  (567a) 

tent  to  and  contriving  and  intending  unlawfully,  fradulently,  and 
deceitfully  to  cheat  and  defraud  the  said  J.  L.  and  P.  J.,  copart- 
ners as  aforesaid,  of  their  goods,  wares,  and  merchandises,  on  the 
thirteenth  day  of  July,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  forty-two,  with  force  and  arms,  at  the  city  and 
county  aforesaid,  and  within  the  jurisdiction  of  the  said  court, 
unlawfully,  knowingly,  and  designedly  did  falsely  pretend  to 
the  said  J.  L.  and  P.  J.,  as  aforesaid,  that  he  (the  said  A.  S.) 
was  requested  by  one  J.  P.  to  purchase  for  him  some  brandy,  and 
that  he  (the  said  P.)  kept  a  large  hotel  at  Washington ;  by  which 
said  false  pretences  the  said  A.  S.  did  then  and  there,  to  wit,  oij 
the  day  and  year  last  aforementioned,  at  the  city  and  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  unlaw- 
fully, knowingly,  and  designedly  obtain  from  the  said  J.  L.  and 
P.  J.,  as  aforesaid,  two  half  pipes  of  brandy,  of  the  value  of  three 
hundred  dollars,  of  the  goods,  wares,  and  merchandises  of  the 
said  J.  L.  and  P.  J.,  with  intent  then  and  there  to  cheat  and 
defraud  them,  the  said  J.  L.  and  P.  J.,  of  the  same ;  whereas,  in 
truth  and  in  fact,  the  said  A.  S.  was  not  requested  by  the  said 
J.  P.  to  purchase  any  brandy  for  him,  and  the  said  P.  did  not 
keep  a  hotel  at  Washington  {insert  scienter)^  to  the  great  damage 
and  deception  of  the  said  J.  L.  and  P.  J.,  to  the  evil  example  of 
all  others  in  like  cases  offending,  against,  etc.,  and  against,  etc. 
{Conclude  as  in  book  1,  chapter  3.) 

(567a)  Pretence  that  defendant  was  a  large  dealer  in  'potatoes. 

The  jurors  for,  etc.,  upon  their  oath  present,  that  W.  C,  on, 
etc.,  at,  etc.,  unlawfully,  knowingly,  and  designedly  did  falsely 
pretend  to  one  J.  G.  that  he,  the  said  W.  C,  then  was  a  dealer 
in  potatoes,  and  as  such  dealer  in  potatoes  then  was  in  a  large 
way  of  business,  and  that  he,  the  said  W.  C,  then  was  in  posi- 
tion to  do  a  good  trade  in  potatoes,  and  that  he,  the  said  W.  C, 
then  was  able  to  pay  for  large  quantities  of  potatoes,  as  and 
when  the  same  might  be  delivered  to  him,  by  means  of  which 
said  false  pretences  the  said  W.  C.  did  then  unlawfully  obtain 
from  the  said  J.  G.  eight  tons,  fifteen  hundredweights,  and  two 
quarters  of  potatoes,  of  the  goods  and  chattels  of  the  said  J.  G., 
with  intent  thereby  then  to  defraud  ;  whereas,  in  truth  and  in 
fact,  the  said  W.  C.  was  not  then  a  dealer  in  potatoes,  and  was 

575 


(567«)  OFFENCES  AGAINST  PROPERTY. 

not  then  as  such  dealer  in  potatoes  in  a  hirge  way  of  husiness, 
and  whereas,  in  truth  and  in  fact,  the  said  W.  C.  was  not  then 
in  a  position  to  do  a  good  trade  in  potatoes,  and  whereas,  in 
truth  and  in  fact,  the  said  W.  C.  was  not  then  able  to  pay  for 
large  quantities  of  potatoes  as  and  when  the  same  should  be 
dcdivered  to  him,  as  he,  the  said  W.  C,  well  knew  at  the  time 
when  he  did  so  falsely  pretend  as  aforesaid ;  to  the  great  dam- 
age and  deception  of  the  said  J.  G.,  to  the  evil  example  of  all 
others  in  the  like  case  offending,  against,  etc.  {Conclude  as  in 
book  1,  chapter  3.) 

•  Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  further 
present,  that  the  said  W.  C.  afterwards,  to  wit,  on,  etc.,  at,  etc., 
did  incur  a  certain  debt  and  liability  to  one  J.  G.,  to  wit,  a 
debt  and  liability  to  the  amount  of  £82  16s.  8d.,  as  and  for  the 
price  of  certain  potatoes  supplied  to  him,  the  said  W.  C,  by  the 
said  J.  G.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present,  that  the  said  W.  C,  in  incurring  the  said 
debt  and  liability,  unlawfullj',  knowingly,  and  designedly  did 
obtain  credit  from  the  said  J.  G.  under  false  pretences,  to  wit, 
by  falsely  pretending  to  the  said  J.  G.  that  he,  the  said  W.  C, 
then  was  a  dealer  in  potatoes,  and  as  such  dealer  in  potatoes 
then  was  in  a  large  way  of  business,  and  that  he,  the  said  W. 
C,  then  was  in  a  position  to  do  a  good  trade  in  potatoes,  and 
that  he,  the  said  W.  C,  then  was  able  to  pay  for  large  quanti- 
ties of  potatoes  as  and  when  the  same  might  be  delivered  to 
him,  whereas,  in  truth  and  in  fact,  the  said  W.  C.  was  not  then 
a  dealer  in  potatoes,  and  was  not  then  as  such  dealer  in  potatoes 
in  a  large  way  of  business,  and  whereas,  in  truth  and  in  fact, 
the  said  W.  C.  was  not  then  in  a  position  to  do  a  good  trade  in 
potatoes,  and  whereas,  in  truth  and  in  fact,  the  said  W.  C.  was 
not  then  able  to  pay  for  large  quantities  of  potatoes  as  and 
when  the  same  should  be  delivered  to  him,  as  he,  the  said  W. 
C,  well  knew  at  the  time  when  he  did  so  falsely  pretend  as 
aforesaid  ;  to  the  great  damage  and  deception  of  the  said  J.  G., 
to  the  evil  exam[)le  of,  etc.(y)     {Conclude  as  in  book  1,  chapter  3.) 

(ij)  R.  V.  Cooper,  13  Cox,  C,  C.  617. 

576 


FALSE    PRETENCES.  (568) 

(568)  Pretence  that  one  of  the  defendants  ^having  advanced  money  to 
the  other  on  a  deposit  of  certain  title  deeds,  had,  himself  de- 
posited the  deeds  with  a  friend,  and  that  he  required  a  sum 
of  money  to  redeem  them  ;  with  counts  for  conspiracy. {z) 

That  heretofore,  and  before  and  at  the  time  of  the  committing 
of  the  offence  hereinafter  mentioned,  one  C.  R.,  acting  in  fraud- 
ulent collusion  with  one  J.  A.,  had  retained  and  employed  one 
W.  J.,  then  and  still  practising  as  an  attorney  at  law  and  solici- 
tor in  chancery,  as  the  attorney  and  solicitor  of  the  said  C.  R.  to 
make  application  to  the  said  J.  A.  for  a  certain  debt  of  five  hun- 
dred pounds,  then  alleged  by  the  said  C.  R.  to  be  due  to  him  from 
the  said  J.  A.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  j^resent,  that  the  said  J.  A.  afterwards,  and  be- 
fore the  committing  of  the  oftence  hereinafter  mentioned,  acting 
in  fraudulent  collusion  with  the  said  C.  R.,oflered  to  and  arranged 
with  the  said  W.  J.,  as  such  attorney  and  solicitor  of  the  said  C. 
R.,  as  aforesaid,  to  discharge  such  alleged  debt  of  five  hundred 
pounds,  and  also  the  further  sum  of  fifty  pounds,  for  a  certain 
other  alleged  debt  upon  the  deeds  hereinafter  mentioned  being 
delivered  to  the  said  J.  A.,  which  said  deeds  the  said  C.  R.,  act- 
ing in  fraudulent  collusion  with  the  said  J.  A.,  afterwards,  and 
before  the  committing  of  the  offence  hereinafter  mentioned,  pro- 
posed to  place  in  the  hands  of  the  said  W.  J.,  as  the  attorney  and 
solicitor  of  the  said  C.  R.,  for  the  purpose  of  being  so  delivered 
to  the  said  J.  A.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present,  that  the  said  C  R.,  late  of  the  par- 
ish of  Saint  George,  Bloomsbury,  in  the  county  of  Middlesex,  and 
within  the  jurisdiction  of  the  said  central  criminal  court,  laborer, 
and  the  said  J.  A.,  late  of  the  same  place,  laborer,  devising  and 
contriving,  and  wickedly  combining  and  intending  to  deceive  the 
said  W.  J.  in  the  premises,  and  to  obtain  from  the  said  W.  J.  the 
said  sum  of  five  hundred  pounds,  and  to  cheat  and  defraud  hira 
of  the  same,  afterwards,  to  wit,  on  the  first  day  of  July,  in  the 
year  of  our  Lord  at  the  parish  of  Saint  George,  Blooms- 

bury,  aforesaid,  in  the  county  aforesaid,  and  within  the  jurisdic- 
tion of  the  said  central  criminal  court,  unlawfully,  knowingly, 

(2)  4  Cox,  C.  C.  Appendix,  p.  xli. 
VOL.  I.— 37  577 


(568)  OFFENCES   AGAINST   PROPERTY. 

and  designedly  did  falsely  pretend  to  the  said  W.  J.,  that  the 
said  J.  A.  was  then  really  and  truly  indebted  to  the  said  C.  R. 
in  the  said  sum  of  five  hundred  pounds,  for  money  lent  by  the 
said  C.  R.  to  the  said  J.  A. ;  that  the  said  J.  A.  had  then  de- 
posited with  the  said  C.  R.  certain  deeds  relating  to  the  property 
of  the  wife  of  the  said  J.  A.,  for  the  purpose  of  securing  payment 
of  the  said  sum  of  five  hundred  pounds  to  the  said  C.  R.,  but  that 
the  said  C.  R.  afterwards  had  deposited  such  deeds  with  a  friend 
of  the  said  C.  R.,  who  had  then  advanced  money  upon  the  secu- 
rity of  the  same  deeds  to  the  said  C.  R.,  and  then  held  the  said 
deeds  as  such  security  as  last  aforesaid  ;  that  the  said  C.  R.  then 
wanted  the  said  sum  of  five  hundred  pounds  from  the  said  W. 
J.,  for  the  purpose  of  recovering  possession  of  the  said  deeds,  and 
to  enable  the  said  C.  R.  to  place  the  same  in  the  hands  of  the 
said  W.  J.,  in  order  that  the  same  might  be  redelivered  to  the 
said  J.  A.  upon  the  payment  by  him  to  the  said  W.  J.  of  the 
said  sum  of  five  hundred  pounds,  pursuant  to  such  oflfer  and 
arrangement  in  that  behalf  as  aforesaid  ;  by  means  of  which  said 
several  false  pretences,  they  the  said  C.  R.  and  J.  A.  then  and 
there,  to  wit, on  the  day  and  year  aforesaid,  and  within  the  juris- 
diction of  the  said  central  criminal  court,  unlawfully,  know- 
ingly, and  designedly  did  fraudulently  obtain  of  and  from  the 
said  "W".  J.  one  order  for  the  payment  of  money,  to  wit,  for  the 
payment,  and  of  the  value  of  five  hundred  pounds,  then  and  there 
being  the  property  of  the  said  W.  J.,  and  one  piece  of  paper  of 
the  value  of  one  penny,  of  the  goods  and  chattels  of  the  said  W. 
J.,  with  intent  then  and  there  to  cheat  and  defraud  him  of  the 
same  property,  goods,  and  chattels  ;  and  whereas,  in  truth  and 
in  fact,  the  said  J.  A.  was  not  then  really  and  truly  indebted  to 
the  said  C.R.  in  the  said  sum  of  five  hundred  pounds,  as  the  said 
C.  R.  and  J.  A.  so  falsely  pretended  as  aforesaid,  either  for  money 
lent  or  any  cause  whatsoever.  And  whereas,  in  truth  and  in  fact, 
the  said  J.  A.  had  not  then  deposited  with  the  said  C.  R.  certain 
deeds  relating  to  the  property  of  the  wife  of  the  said  J.  A.,  for 
the  purpose  of  securing  payment  of  the  said  sum  of  five  hundred 
pounds  to  the  said  C.  R.,  as  the  said  C.  R.  and  J.  A.  so  falsely 
pretended  as  aforesaid,  or  of  any  sum  of  money  whatever.  And 
whereas,  in  truth  and  in  fact,  the  said  C.  R.  had  not  then  depos- 
ited any  such  deeds  as  the  said  C.  R.  and  J.  A.  so  falsely  pre- 
578 


FALSE    PRETENCES.  (568) 

tended  as  aforesaid,  with  any  friend  of  the  said  C.  R.,  who  had 
then  advanced  money  upon  the  security  of  such  deeds  to  the  said 
C.  R.,  or  with  any  person  whatsoever ;  nor  did  any  such  friend 
of  the  said  C.  R.,  as  the  said  C.  R.  and  J.  A.  so  falsely  pretended 
as  aforesaid,  then  hold  such  deed  as  a  security  for  any  money 
advanced  to  the  said  C.  R.,  as  the  said  C.  R.  and  J.  A.  so  falsely 
pretended  as  aforesaid.  And  whereas,  in  truth  and  in  fact,  the 
said  C.  R.  did  not  then  want  the  said  sum  of  five  hundred  pounds 
from  the  said  W.  J.  for  the  purpose  of  recovering  possession  of 
any  such  deeds  as  the  said  C.  R.  and  J.  A.  so  falsely  pretended 
as  aforesaid,  or  to  enable  the  said  C.  R.  to  place  such  deeds  in 
the  hands  of  the  said  W.  J.  in  order  that  the  same  might  be  re- 
delivered to  the  said  J.  A.  upon  the  payment  by  him  to  tbe  said 
W.  J.  of  the  said  sum  of  five  hundred  pounds,  pursuant  to  such 
otfer  and  arrangement  in  that  behalf  as  aforesaid.  And  whereas, 
in  truth  and  in  fact,  the  said  alleged  debt,  and  the  said  supposed 
deeds  had  no  existence  whatsoever,  but  were  pretended  to  have 
existence  by  the  said  C.  R.  and  J.  A.  as  aforesaid,  for  the  pur- 
pose of  deceiving,  cheating,  and  defrauding  the  said  W.  J.  in 
manner  aforesaid,  and  for  no  other  purpose  whatever;  to  the 
great  injury  and  deception  of  the  said  W.  J.,  to  the  evil  and  per- 
nicious example  of  all  other  persons  in  the  like  case  oflending, 
against  the  peace,  etc.,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

Second  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  C.  R.  and  J.  A.,  devising  and  contriving, 
and  wickedly  combining  and  intending  to  deceive  the  said  W. 
J.,  and  to  obtain  from  the  said  W.  J.  the  said  sura  of  five 
hundred  pounds,  and  to  cheat  and  defraud  him  of  the  same, 
afterwards,  to  wit,  on  the  said  first  day  of  July,  in  the  year  of 
our  Lord  at  the  parish  of  St.  George,  Bloomsbury,  aforesaid, 

in  the  county  of  Middlesex  aforesaid,  and  within  the  jurisdiction 
of  the  said  central  criminal  court,  unlawfully,  knowingly,  and 
designedly  did  falsely  pretend  to  the  said  W.  J.,  that  the  said 
J.  A.  had  before  then  deposited  with  the  said  C.  R.  certain  deeds 
relating  to  the  property  of  the  wife  of  the  said  J.  A.,  as  a  se- 
curity for  the  payment  to  the  said  C.  R.  of  the  sum  of  five 

579 


(568)  OFFENCES  AGAINST  PROPERTY. 

hundred  pounds  ;  that  the  said  C.  R.  had  afterwards  deposited 
such  deeds  with  a  friend  of  the  said  C.  R.,  who  had  then  ad- 
vanced money  to  the  said  C.  R.  upon  the  security  of  the  said 
deeds,  and  then  held  such  deeds  as  such  security  as  last  afore- 
said ;  and  that  the  said  C.  R.  then  required  the  sum  of  five 
hundred  pounds  for  the  purpose  of  recovering  possession  of  the 
said  deeds;  by  means  of  which  said  several  false  pretences  in 
this  count  mentioned,  the  said  C.  R.  and  J.  A.  did  then  and 
there  unlawfully,  knowingly,  and  designedly  fraudulently  obtain 
of  and  from  the  said  W.  J.  one  order  for  the  payment  of  money, 
to  wit,  for  the  payment  of  the  sum  of  five  hundred  pounds, 
then  and  there  being  of  the  value  of  five  hundred  pounds,  and 
the  property  of  the  said  W.  J.,  and  one  piece  of  paper  of  the 
value  of  one  penny,  of  the  goods  and  chattels  of  the  said  W. 
J.,  with  intent  then  and  there  to  cheat  and  defraud  the  said  W. 
J.  of  the  said  goods  and  chattels  and  property  ;  whereas,  in  truth 
and  in  fact,  the  said  J.  A.  had  not  deposited  with  the  said  C.  R. 
such  deeds  relating  to  the  property  of  the  wife  of  the  said  J.  A., 
as  the  said  C.  R.  and  J.  A.  so  falsely  pretended,  as  in  this  count 
mentioned.  And  whereas,  in  truth  and  in  fact,  the  said  C.  R. 
had  not  deposited  such  deeds  with  any  friend  of  the  said  C.  R., 
as  the  said  C.  R.  and  J.  A.  so  falsely  pretended,  as  in  this  count 
mentioned.  And  whereas,  in  truth  and  in  fact,  no  friend  of  the 
said  C.  R.,  nor  any  person  whatsoever,  had  then  advanced  money 
to  the  said  C.  R.  upon  the  security  of  the  said  deeds.  And 
whereas,  in  truth  and  in  fact,  no  friend  of  the  said  C.  R.,  nor 
any  person  whatsoever,  then  held  such  deeds  as  any  security 
whatsoever.  And  whereas,  in  truth  and  in  fact,  the  said  C.  R. 
did  not  then  require  the  said  sum  of  five  hundred  pounds,  or 
any  sum  of  money  whatsoever,  for  the  purpose  of  recovering 
possession  of  such  deeds,  as  the  said  C.  R.  and  J.  A.  so  falsely 
pretended  as  in  this  count  mentioned.  And  whereas,  in  truth 
and  in  fact,  such  deeds  had  no  existence  whatsoever,  but  were 
80  pretended  by  the  said  C.  R.  and  J.  A.  to  have  existence  as 
aforesaid,  for  the  purpose  of  cheating  and  defrauding  the  said 
W.  J.  as  aforesaid,  and  for  no  other  purpose  whatsoever  ;  to  the 
great  injury  and  deception  of  the  said  W.  J.,  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace,  etc. 

580 


FALSE    PRETENCES.  (568) 

Third  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  J.  A.  and  C.  R.  afterwards,  to  wit,  on  the 
day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  central  crimi- 
nal court,  unlawfully  and  wickedly  did  conspire,  combine,  con- 
federate, and  agree  together,  and  with  divers  other  evil  disposed 
persons,  whose  names  to  the  jurors  aforesaid  are  as  yet  unknown, 
falsely  and  fraudulently  to  pretend  and  cause  to  appear  to  the 
said  W.  J.,  that  the  said  J.  A.  was  then  indebted  to  the  said  C. 
R.  in  the  sum  of  five  hundred  pounds;  that  the  said  J.  A.  had 
deposited  with  the  said  C.  E,.  certain  deeds  relating  to  the 
property  of  the  wife  of  the  said  J.  A.,  as  a  security  for  the  pay- 
ment to  the  said  C.  R.  of  the  said  sum  of  five  hundred  pounds ; 
that  the  said  C.  R.  had  afterwards  deposited  such  deeds  with  a 
friend  of  the  said  C.  R.,  who  had  advanced  money  upon  the 
security  of  the  same,  and  by  whom  such  deeds  were  then  held ; 
that  the  said  J.  A.  was  desirous  of  discharo-ino;  the  said  debt 
due  from  him  to  the  said  C-  R.,  upon  the  redelivery  to  the  said 
J.  A.  of  the  said  deeds,  but  that  the  said  C.  R.  was  then  unable 
to  procure  the  redelivery  to  him  of  the  said  deeds,  for  want  of 
money  to  pay  such  money  so  advanced  to  him  upon  the  security 
of  the  same,  and  to  induce  and  persuade  the  said  W.  J.,  by 
means  of  the  several  false  representations  aforesaid,  and  upon 
the  faith  and  confidence  that  such  deeds  really  existed,  and 
upon  the  promise  and  assurance  of  the  said  C.  R.  that  he  would 
deposit  the  said  deeds  with  the  said  W.  J.,  for  the  purpose  of 
delivering  the  same  to  the  said  J.  A.,  and  receiving  from  the 
said  J.  A.  such  debt  of  five  hundred  pounds,  so  to  be  pretended 
to  be  due  from  the  said  J.  A.  to  the  said  C.  R.,  to  obtain  from 
the  said  W.  J.  divers  of  the  moneys  of  the  said  W.  J.,  amount- 
ing to  the  sum  of  five  hundred  pounds,  for  the  pretended  pur- 
pose of  obtaining  such  deeds  from  such  friend  of  the  said  C.  R., 
and  to  cheat  and  defraud  the  said  W.  J.  of  the  same,  and  mutu- 
ally to  aid  and  assist  one  another  in  carrying  out  and  putting 
into  execution  the  said  unlawful  and  wicked  combination,  con- 
spiracy, confederation,  and  agreement;  whereas,  in  truth  and  in 
fact,  no  such  deeds  as  in  this  count  mentioned  then  or  ever  had 

581 


(569)  OFFENCES  AGAINST  PROPERTY. 

any  existence  whatsoever ;  to  the  great  injury  and  deception  of 
the  said  W.  J.,  and  against  the  peace,  etc. 

Fourth  count. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  the  said  J.  A.  and  C.  R.  afterwards,  to  wit,  on  the 
day  and  year  aforesaid,  at  the  parish  aforesaid,  in  the  county 
aforesaid,  and  within  the  jurisdiction  of  the  said  central  crimi- 
nal court,  unlawfully  and  wickedly  did  conspire,  combine,  con- 
federate, and  agree  together,  and  with  divers  other  evil  disposed 
persons,  whose  names  to  the  jurors  aforesaid  are  as  yet  unknown, 
by  divers  false  pretences,  and  by  divers  false,  artful,  indirect, 
deceitful,  and  fraudulent  means,  devices,  arts,  stratagems,  and 
contrivances,  to  obtain  and  acquire  into  their  hands  and  posses- 
sion of  and  from  the  said  W.  J.,  divers  of  his  moneys,  amount- 
ing to  a  large  sum,  to  wit,  the  sum  of  five  hundred  pounds,  and 
to  cheat  and  defraud  him  of  the  same,  to  the  great  injury  and 
deception  of  the  said  W.  J.,  against  the  peace,  etc.,  and  contrary 
to  the  form  of  the  statute,  etc. 

(569)  For  jpretending  to  an  attesting  justice  and  a  recruiting  sergeant 
that  defendant  was  not  an  apprentice,  and  thereby  obtaining 
money  to  enlist.{a) 

That  on,  etc.,  one  D.  K.,  then  being  a  sergeant  in  the  invalid 
battalion  of  the  royal  regiment  of  artillery  of  our  said  lady  the 
queen,  then  and  long  before  was  a  person  in  due  manner  ap- 
pointed and  authorized  to  enlist  persons  to  serve  our  said  lady 
the  queen  as  soldiers  in  the  corps  of  royal  military  artificers  and 
laborers,  and  that  one  S.  D.  had  then  lately  before  enlisted  with 
the  said  D.  K.,  to  serve  our  said  lady  the  queen  as  a  soldier  in 
the  said  corps  of,  etc.,  and  the  said  S.D.,  on,  etc.,  at,  etc.,  in  order 
to  be  attested,  pursuant  to  the  statute  in  that  case  made  and 
provided,  did  in  his  proper  person  appear  before  H.  L.,  esquire, 
then  being  one  of  the  justices  of  our  said  lady  the  queen,  as- 
signed, etc.   And  the  jurors,  etc.,  do  further  present,  that  the  said 

(a)  Dickinson's  Q.  S.  6th  ed.  335  (c)  ;  1  Stark.  C.  P.  474.  See  8  Vict.  cc. 
8,  9,  and  annual  mutiny  acts;  also  R.  v.  Jones,  1  Leach,  C.  C.  174.  The 
indentures  must  be  proved  by  a  subscribing  witness,  if  produced  (lb.) ;  for  the 
guilt  of  the  offence  is  constituted  by  the  actual  and  legal  binding. 

582 


FALSE   PRETENCES.  (^"0) 

S.  D.,  late  of,  etc.,  being  an  evil  disposed  person,  and  contriving 
and  intending  to  cheat  and  defraud  the  said  D.  K.  of  his  moneys, 
and  to  make  it  be  believed  that  he  the  said  S.  D.  was  at  liberty 
and  eligible  to  be  enlisted,  to  serve  our  said  lady  the  queen  as  a 
soldier  in  the  corps  of,  etc.,  on,  etc.,  with  force  and  arms,  at,  etc., 
aforesaid,  unlawfully,  knowingly,  and  designedly,  did  falsely  pre- 
tend to  the  said  H.  L.  (he  the  said  H.  L.  then  and  there  being 
such  justice  as  aforesaid,  and  then  and  there  having  sufficient 
and  competent  power  and  authority  to  attest  persons  to  serve 
our  said  lady  the  queen  as  soldiers  in  the  said  corps  of,  etc.),  that 
the  said  S.  D.  was  not  then  an  apprentice  (meaning  that  the  said 
S.D.  then  and  there,  to  wit,  on,  etc.,  at,  etc.,  when  he  so  appeared 
before  the  said  H.  L.,  the  justice  aforesaid,  in  order  to  be  attested 
as  aforesaid,  was  not  an  apprentice,  and  that  he  the  said  S.  D. 
was  then  and  there  at  liberty  and  eligible  to  be  enlisted  to  serve 
our  said  lady  the  queen  as  a  soldier  in  the  said  corps),  by  means 
of  which  said  false  pretence,  he  the  said  S.D.  unlawfully,  know- 
ingly, and  designedly  did  obtain  from  the  said  D.  K.  the  sum  of 
pounds,  of  the  proper  moneys  of  the  said  D.  K.,  with  in- 
tent to  cheat  and  defraud  the  said  D.  K  of  the  same ;  whereas, 
in  truth  and  in  fact,  the  said  S.  D.,  on,  etc.,  at,  etc.,  aforesaid,  at 
the  time  when  he  so  appeared  before  the  said  H.  L.,  the  justice 
aforesaid,  in 'order  to  be  attested  as  aforesaid,  was  an  apprentice, 
and  was  not  at  liberty  and  eligible  to  be  enlisted  to  serve  our 
said  lady  the  queen  as  a  soldier  in  the  said  corps ;  and  whereas, 
in  truth  and  in  fact,  the  said  S.  D.  was  then,  to  wit,  on,  etc.,  an 
apprentice  to  G.  0. ;  and  whereas,  in  truth  and  in  fact,  the  said 
S.  D.  was  not  then,  to  wit,  on,  etc.,  at,  etc.,  at  liberty  and  eligible 
to  be  enlisted  to  serve  our  said  lady  the  queen  as  a  soldier  in  the 
said  corps  {insert  scienter),  against,  etc.,  and  against,  etc.  {Con- 
clude as  in  book  1,  chapter  3.) 

(570)  For  obtaining  more  than  the  sum  due  for  carriage  of  a  parcel 
by  producing  a  false  ticket.{b) 

That  A.  B.,  late  of,  etc.,  on,  etc.,  at,  etc.,  had  in  his  custody 
and  possession  a  certain  parcel,  to  be  by  him  delivered  to  Maria 

(ft)  This  was  the  indiotment  in  R.  v.  Douglass  (1  Campb.  212).  nnd  it  was 
held,  upon  the  terms  of  30  Geo.  II.  c.  42,  that  a  basket  is  suiheiently  described 
as  a,  parcel.     It  was  also  held,  that  if  money  (as  in  this  case)  be  obtained  from 

583 


(571)  OFFENCES    AGAINST    PROPERTY. 

Countess  Dowager  of  Ilchester,  upon  the  delivery  of  which  he 
was  authorized  and  directed  to  receive  and  take  the  sum  of  six 
shillings  and  sixpence,  and  no  more,  for  the  carriage  and  porter- 
age of  the  same  ;  yet,  that  the  said  A.  B.  produced  and  delivered 
to  T.  H.jthen  being  a  servant  to  the  said  Countess  of  I.,  the  said 
parcel,  together  with  a  certain  false  and  counterfeit  ticket,  made 
to  denote  that  the  sum  of  nine  shillings  and  tenpence  was  charged 
for  the  carriage  and  porterage  of  the  said  parcel,  and  unlawfully, 
knowingly,  and  designedly  did  falsely  pretend  to  the  said  T.  H., 
that  the  said  false  and  counterfeit  ticket  was  a  just  and  true 
ticket,  and  that  the  said  sum  of  nine  shillings  and  tenpence  had 
been  charged  and  was  due  and  payable  for  the  carriage  and  por- 
terage of  the  said  parcel,  and  that  he  the  said  A.  B.  was  author- 
ized and  directed  to  receive  and  take  the  said  sum  of  nine  shil- 
lings and  tenpence  for  the  carriage  and  porterage  of  the  said 
parcel,  by  means  of  which  said  false  pretences  defendant  did 
unlawfully,  knowingly,  and  designedly  obtain,  of  and  from  the 
said  T.  H.,  the  sum  of  three  shillings  and  fourpence,  of  the 
moneys  of  the  said  countess,  with  intent  to  cheat  and  defraud 
her  of  the  same,  whereas,  in  truth  and  in  fact,  etc.  {Negative 
the  pretences^  and  conclude  as  before.') 

(571)  Pretences  that  defendant  had  no  note  protested  for  non-pay- 
ment,  that  he  was  solvent,  and  worth  from  nine  to  ten  thousand 
dollars.{c) 

That  C.  H.,  late,  etc.,  being  a  person  of  an  evil  disposition, 
ill-name  and  fame,  and  of  dishonest  conversation,  and  devising 

the  servant,  who  had  money  of  his  master  in  hand  at  the  time,  it  might  be  well 
laid  to  be  the  property  of  the  latter ;  but  if  he  had  not  money  enough  of  his  em- 
ployer in  his  hands  at  the  time,  such  master  cannot  be  stated  to  be  the  person 
defrauded. 

(c)  People  V.  Haynes,  14  Wend.  546.  In  this  case  ultimately  there  was  a 
new  trial  given  by  the  court  of  errors,  on  the  ground  that  where  a  purchase  of 
merchandise  is  made,  the  goods  selected,  put  in  a  box,  and  the  name  of  the  pur- 
chaser and  his  place  of  residence  marked  thereon,  and  the  box  containing  the 
goods  sent  by  the  vendor  and  put  on  board  a  steamboat  designated  by  the  pur- 
chaser, to  be  forwarded  to  his  residence,  the  sale  is  coinplete,  and  the  goods  be- 
come the  jn-operty  of  the  purchaser. 

It  was  further  ruled  that,  where  after  such  deliveri/,  the  vendor,  on  receiving 
information  inducing  him  to  suspect  the  solvency  of  the  purchaser,  expressed  an 
intention  to  reclaim  the  goods,  and  the  purchaser  thereupon  made  representations 
in  respect  to  his  ability  to  pay,  by  means  of  which  the  vendor  abandoned  his  in- 
tention, and  the  purchaser  was  then  indicted,  charged  with  the  ofi'ence  of  having 
obtained  the  goods  by  false  pretences,  the  representations  made  by  him  being 

584 


FALSE    PRETENCES.  (571) 

and  intending,  by  unlawful  ways  and  means,  to  obtain  and  get 
into  his  hands  and  possession  the  moneys,  valuable  things,  goods, 

alleged  as  false  pretences,  the  sale  being  complete  before  the  representations 
were  made,  the  defendant  could  not  be  considered  guilty  of  the  crime  charged 
against  him. 

The  above  were  the  only  points  adjudged  in  the  decision  of  the  case  ;  the 
court  declining  to  pass  upon  the  other  questions  presented  by  the  bill  of  excep- 
tion. Those  questions  are  :  1.  Whether,  admitting  the  representations  made  by 
the  defendant  to  have  been  made  previous  to  the  completion  of  the  sale,  and  that 
thereby  the  vendors  were  induced  to  give  him  credit,  such  representations  can 
properly  be  considered  false  pretences  within  the  meaning  of  the  statute;  and  2. 
Whether  when,  as  in  this  case,  several  pretences  are  alleged  to  have  been  made, 
and  are  averred  to  be  false,  the  public  prosecutor  is  bound  to  prove  all  the  pre- 
tences to  be  false,  or  whether  it  is  sufficient  for  less  than  all  to  be  false,  provided 
that  enough  be  proved  to  authorize  the  jury  to  say  that  those  proved  had  so  ma- 
terial an  effect  in  procuring  the  credit,  or  in  inducing  the  delivery  of  the  pro- 
perty, that  without  the  influence  of  such  pretences  upon  the  mind  of  the  party 
defrauded,  he  would  not  have  given  the  credit  or  parted  with  the  property. 

Conclusions  arrived  at  by  the  chancellor,  in  the  opinion  delivered  by  him  in 
the  court  of  errors : — 

"A  bill  of  exception  cannot  be  presented  in  a  criminal  case,  to  review  the 
charge  of  the  court,  or  the  finding  of  the  jury  upon  mere  matters  of  fact,  where 
there  has  been  no  erroneous  decision  upon  matters  of  laiv. 

"  Whether  it  is  competent  for  a  court  to  grant  a  new  trial  in  a  case  of  felony, 
at  the  instance  of  the  defendant,  where  there  has  been  a  palpable  misdiscretion 
of  the  court  upon  the  mere  matters  of  fact,  or  a  verdict  clearly  against  the  weight 
of  evidence  without  such  misdiscretion,  where  no  erroneous  decision  in  point  of 
law  is  made,  qucere. 

"  It  is  not  necessary  to  constitute  the  offence  of  obtaining  goods  by  false  pre- 
tences that  the  owner  should  have  been  induced  to  part  with  his  property  solely 
and  entirely  by  pretences  which  were  false.  If  the  jury  are  satisfied  that  the 
pretences  proved  to  have  been  false  and  fraudulent  were  a  part  of  the  moving 
causes,  inducing  the  owner  to  part  with  his  property,  and  that  the  defendant 
would  not  have  obtained  the  goods,  had  not  the  false  pretences  been  superadded 
to  statements  which  may  have  been  true,  or  to  other  circumstances  having  a 
partial  influence  upon  the  mind  of  the  owner,  they  will  be  justified  in  finding 
the  defendant  guilty  of  the  offence  charged  witliin  the  letter  as  well  as  within 
the  spirit  of  the  act. 

"In  the  present  case,  although  all  the  pretences  stated  in  the  indictment,  as 
those  upon  the  strength  of  which  the  goods  were  obtained,  are  charged  to  be 
false  ;  still,  if  either  of  them  was  in  fact  false,  was  intended  to  deceive  the  own- 
ers of  the  goods,  and  induce  them  to  part  with  their  property,  and  produced  that 
effect,  the  indictment  was  sustained  ;  one  false  pretence  is  sufficient  to  constitute 
the  crime,  although  other  false  pretences  are  charged. 

"To  constitute  the  offence  of  obtaining  goods  by  false  pretences,  it  is  not 
necessary  that  any  false  token  should  be  used,  or  that  the  false  pretences  should 
be  such  as  that  ordinary  care  and  common  prudence  were  not  sufficient  to  guard 
against  the  deception. 

"The  offence  consists  in  intentionally  and  fraudulently  inducing  the  owner  to 
part  with  his  goods  or  other  things  of  value,  either  by  a  wilful  falsehood,  or  by 
the  offender  assuming  a  character  he  does  not  sustain,  or  by  representing  him- 
self to  be  in  a  station  which  he  knows  he  does  not  occupy. 

"  As  to  the  ownership  of  tlie  goods  at  the  time  of  the  making  of  the  repre- 
sentations, the  chancellor  was  of  opinion,  that  the  delivery  of  the  property  on 
board  of  the  steamboat,  for  the  purpose  for  wliich  it  was  delivered,  divested  the 
vendors  not  only  of  the  possession,  but  of  the  title  to  the  goods ; — that  they, 

585 


(571)  OFFENCES    AGAINST    PROPERTY. 

chattels,  personal  property,  and  effects  of  the  honest  and  g;ood 
people  of  the  state  of  !N'ew  York,  to  maintain  his  idle  and  profli- 
gate course  of  life,  on,  etc.,  at,  etc.,  with  intent  feloniously  to 
cheat  and  defraud  F.  S.  C,  C.  A.,  and  J.  H.  S.,  then  and  there 
copartners  in  business,  under  the  firm  of  C,  A.,  and  Co.,  did 
then  and  there  feloniously,  unlawfully,  knowingly,  and  design- 
edly falsely  pretend  and  represent  to  C.  A.,  being  such  copartner, 
that  he,  the  said  C.  H.,  had  then  no  note  protested  for  non-pay- 
ment, that  he  was  then  solvent  and  worth  from  nine  to  ten 
thousand  dollars  after  the  payment  of  all  his  debts,  that  he  was 
perfectly  easy  in  his  money  concerns,  that  he  had  no  indorser, 
and  that  he  had  never  indorsed  more  than  one  note.     And  the 

however,  had  the  right  of  stoppage  in  transitu  in  case  of  the  insolvency  of  the 
purchaser ;  but  that  to  reinvest  themselves  with  the  right  of  property  and  pos- 
session of  the  goods,  they  were  bound  to  take  corporal  possession  of  them,  or  to 
give  notice  to  the  carrier  not  to  deliver  them  to  the  purchaser,  or  to  do  some 
other  equivalent  act.  Not  having  done  so,  the  property  in  the  goods  was  in  the 
defendant,  and  consequently  he  did  not  obtain  the  possession  or  deliver^/  of  them 
by  means  of  the  false  pretences  stated  in  the  indictment;  and  although  he  pro- 
bably by  his  false  representations  prevented  the  vendors  from  exercising  the  right 
of  stoppage  in  transitu,  still  he  could  not  be  convicted  of  the  charge  of  obtaining 
the  goods  by  false  pretences  ;  for  which  reason,  and  that  alone,  he  was  of  opinion 
that  the  judgment  of  the  supreme  court  ought  to  be  revised.'" 

Conclusions  arrived  at  by  Senator  Tracy,  in  the  opinion  delivered  by  him  : — 

"The  delivery  on  board  the  steamboat  under  the  circumstances  of  the  case, 
was  an  absolute  delivery,  and  vested  in  the  purchaser  not  only  the  possession 
but  the  title  to  the  goods  ;  and  even  if  the  vendors  had  the  right  of  stoppage  in 
transitu,  in  case  of  insolvency  of  the  purchaser,  the  existence  of  that  right  did 
not  render  the  delivery  conditional,  nor  could  the  exercise  of  it  divest  the  pur- 
chaser of  the  ownership  of  the  goods.  The  representations  relied  on  as  false 
pretences  being  subsequent  to  such  delivery,  if  they  could  be  considered  us  false 
pretences,  would  not  therefore  subject  the  defendant  to  the  charge  of  obtaining 
the  goods  by  false  pretences. 

"  Where  there  are  several  pretences  alleged  in  the  indictment  to  be  false,  all 
must  be  proved  to  be  false.  The  offence  consists  of  two  distinct  elements,  to  wit, 
false  pretences,  and  obtaining  goods  of  another.  All  the  pretences  together  con- 
stitute but  one  portion  of  the  oifence ;  and  every  pretence,  therefore,  set  forth 
and  alleged  to  be  false,  is  a  substantive  or  constituent  element  of  the  offence,  and 
cannot  be  deemed  immaterial ;  the  petit  jury  can  convict  only  upon  the  pretences 
found  by  the  grand  jury,  as  it  cannot  be  known  that  they  would  have  found  the 
bill  true,  unless  it  had  been  proved  before  them  that  all  the  pretences  found  to 
have  been  made,  had  in  fact  been  made  and  falsely  made. 

"The  words  other  false  pretence,  in  the  statute,  considered  in  connection  with 
the  other  terms  used,  and  the  circumstances  under  which  the  statute  30  Geo.  II. 
was  passed,  upon  which  ours  is  founded,  meant  not  a  bare  naked  lie,  unaccom- 
panied with  any  artful  contrivance  fitted  to  deceive,  although  intentionally  and 
fraudulently  told,  with  the  purpose  of  obtaining  the  property  of  another ;  but 
they  mean  an  artfully  contrived  story,  which  would  naturally  have  the  effect 
upon  the  mind  of  the  person  addressed,  equivalent  to  n  false  token  or  false  icrit- 
ing — an  ingenious  contrivance,  an  unusual  artifice,  against  which  common  sagacity 
and  the  exercise  of  ordinary  caution  is  not  a  sufficient  guard." 

586 


FALSE   PRETENCES.  (571) 

said  C.  A.  then  and  there  believing  the  said  false  pretences  and 
representations,  so  made  as  aforesaid  by  the  said  C.  H.,  and 
being  deceived  thereby,  was  induced,  by  reason  of  the  false  pre- 
tences and  representations  so  made  as  aforesaid,  to  deliver,  and 
did  then  and  there  deliver,  to  the  said  C.  H.  five  pieces  of  gros 
de  nap,  of  the  value  of  thirty  dollars  for  each  piece;  two  pieces 
of  gros  de  swiss,  of  the  value  of  eighty  dollars  each  piece ;  one 
piece  of  bombazine,  of  the  value  of  sixty-four  dollars ;  nine 
dozen  of  belt  ribbons,  of  the  value  of  three  dollars  and  fifty 
cents  each  dozen  ;  two  pieces  of  black  silk  velvet,  of  the  value 
of  thirty  dollars  each  piece;  one  piece  of  silk,  of  the  value  of 
one  hundred  dollars  ;  eight  pieces  of  satin  levantine,  of  the  value 
of  fifteen  dollars  each  piece ;  four  pieces  of  figured  vestings,  of 
the  value  of  fifteen  dollars  each  piece;  of  the  proper  valuable 
things,  goods,  chattels,  and  eftects  of  the  said  F.  S.  C,  C.  A.,  and 
J.  H.  S.,  and  the  said  C.  H.  did  then  and  there  designedly  re- 
ceive and  obtain  the  said  goods,  chattels,  and  effects,  of  the  said 
F.  S.  C,  C.  A.,  and  J.  H.  S.,of  the  proper  valuable  things,  goods? 
chattels,  and  effects  of  the  said  F.  S.  C,  C.  A.,  and  J.  H.  S.,  by 
means  of  the  false  pretences  and  representations  aforesaid,  and 
with  intent  feloniously  to  cheat  and  defraud  the  said  F.  S.  C, 
C.  A.,  and  J.  H.  S.  of  the  said  goods,  chattels,  and  eflfects ; 
whereas,  in  truth  and  in  fact,  the  said  C.  H.  at  that  time  had  a 
note  protested  for  non-payment ;  and  whereas,  in  truth  and  in 
fact,  the  said  C.  H.  was  then  insolvent  and  unable  to  pay  his 
debts;  and  whereas,  in  truth  and  in  fact,  the  said  C.  H.  was  not 
then  easy  in  his  money  concerns,  but  on  the  contrary  thereof, 
greatly  embarrassed  in  his  affairs  ;  and  whereas,  in  truth  and  in 
fact,  the  said  C.  H.  had  indorsers  ;  and  whereas,  in  truth  and  in 
fact,  the  said  C.  H.  was  at  that  time  an  indorser  for  persons  to 
the  jurors  unknown;  and  whereas,  in  fact  and  truth,  the  pre- 
tences and  representations  so  madesas  aforesaid,  by  the  said  C. 
H.  to  the  said  C.  A.,  was  and  were  in  all  respects  utterly  false 
and  untrue,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the 
ward,  city,  and  county  aforesaid ;  and  whereas,  in  fact  and  in 
truth,  the  said  C.  II.  well  knew  the  said  pretences  and  represen- 
tations, so  by  him  made  as  aforesaid  to  the  said  C.  A.,  to  be 
utterly  false  and  untrue  at  the  time  of  making  the  same. 

587 


(572)  OFFENCES  AGAINST  PROPERTY. 

And  80  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say, 
that  the  said  C.  H.,  by  means  of  the  false  pretences  aforesaid, 
on,  etc.,  at,  etc.,  feloniously,  unlawfully,  falsely,  knowingly,  and 
designedly  did  receive  and  obtain  from  the  said  F.  S.  C,  C.  A., 
and  J.  H.  S.  the  said  goods,  chattels,  and  effects,  of  the  proper 
valuable  things,  goods,  chattels,  and  effects  of  the  said  F.  S.  C, 
C.  A.,  and  J.  H.  S.,  with  intent  feloniously  to  cheat  and  defraud 
them  of  the  same,  against,  etc.,  and  against,  etc.  {Conclude  as  in 
hook  1,  chapter  3.) 

(572)  Obtaining  acceptances  on  drafts,  hy  pretence  that  certain  goods 
had  been  purchased  by  defendant  and  were  about  to  be  shipped 
to  prosecutor. 

That  S.  M.,  late,  etc.,  wickedly  devising  and  intending  to 
cheat  and  defraud  W.  C.  Jr.,  and  P.  P.  G.,  copartners,  trading 
under  the  firm  of  C.  and  G.,  of  their  goods,  chattels,  moneys, 
and  properties,  on,  etc.,  at,  etc  ,  did  request  and  solicit  them  the 
said  W.  and  P.,  trading  as  aforesaid,  to  accept  certain  drafts  or 
bills  of  exchange  drawn  by  him  the  said  S.  M.  on  them  the  said 
C.  and  G.,  for  the  sura  of  three  thousand  dollars  each,  both  dated 
Philadelphia,  May  twenty-sixth,  one  thousand  eight  hundred 
and  forty-seven,  one  payable  forty  days  after  date,  the  other 
payable  sixty  days  after  date,  and  both  being  drawn  to  the  order 
of  him  the  said  S. ;  and  as  the  inducement  for  them  the  said  W. 
and  P.,  trading  as  aforesaid,  to  accept  the  said  drafts  or  bills  of 
exchange,  he  the  said  S.  did  then  and  there  unlawfully,  and 
fraudulently,  and  designedly  pretend  to  the  said  W.  C.  Jr.,  then 
and  there  being  copartner  as  aforesaid,  that  he  the  said  S.  M.  had 
purchased  and  had  in  Pittsburg,  ready  for  shipment,  nineteen 
thousand  barrels  of  flour,  and  about  fifty  thousand  bushels  of 
wheat,  rye,  corn,  and  oats  ;  and  that  if  he  the  said  AY.  0.  Jr., 
partner  as  aforesaid,  would  accept  the  said  two  drafts  above  de- 
scribed, he  the  said  S.  would  go  out  to  Pittsburg  and  ship  them, 
the  said  C.  and  G.,  two  thousand  barrels  of  flour  to  cover  the 
said  two  drafts,  and  that  he  the  said  S.  had  already  ordered  to 
be  shipped  them  the  said  C.  and  G.  one  thousand  barrels  of  flour, 
to  cover  a  certain  other  draft  or  bill  of  exchange  then  before 
drawn  by  the  said  S.  on  the  said  C.  and  G.,  for  the  sum  of  six 
thousand  three  hundred  and  seventy-nine  dollars  and  seventy- 
588 


FALSE    PRETENCES.  (S'^2) 

six  cents,  and  duly  accepted  by  the  said  C.  and  G.,  and  then 
remaining  unpaid  ;  whereas,  in  truth  and  fact,  he  the  said  S.  had 
not  purchased, and  had  not  in  Pittsburg  ready  for  shipment,  nine- 
teen thousand  barrels  of  flour,  and  about  fifty  thousand  bushels 
of  wheat,  rye,  corn,  and  oats,  and  he  the  said  S.  did  not  intend 
to  go  out  to  Pittsburg  and  ship  to  them  the  said  C.  and  G.  two 
thousand  barrels  of  flour,  to  cover  the  said  two  drafts  of  three 
thousand  dollars  each,  then  asked  to  be  accepted,  and  he  the  said 
S.  had  not  ordered  to  be  shipped  to  said  C.  and  G.  one  thousand 
barrels  of  flour,  to  cover  and  secure  the  payment  of  the  said  other 
draft  of  six  thousand  three  hundred  and  seventy-nine  dollars  and 
seventy-six  cents,  drawn  by  the  said  S.  as  aforesaid,  and  he  the 
said  S.  then  and  there  well  knew  the  said  pretence  and  pretences 
to  be  false  and  fraudulent ;  by  color  and  means  of  which  said 
false  pretence  and  pretences,  he  the  said  S.  did  then  and  there 
unlawfully  and  with  intent  to  cheat  and  defraud  them,  the  said 
C.  and  G.,  procure  and  obtain  the  acceptance  of  the  said  firm  of 
C.  and  G.  from  the  said  W.  C.  Jr.,  then  and  there  being  partner 
as  aforesaid,  to  and  upon  the  said  two  drafts  of  three  thousand 
dollars  each,  by  the  writing  of  the  name  of  the  said  C.  and  G, 
on  the  face  of  the  said  drafts,  which  said  drafts  respectively  are 
of  the  tenor  and  effect  following,  to  wit : — 

"  Dollars  3000.  Philadelphia,  May  26,  1847. 

"  Forty  days  after  date  please  pay  to  my  own  order  three  thou- 
sand dollars,  and  charge  the  same  to  account  of,     Yours,  etc., 

S.  M." 

"To  Messrs.  C.  and  G.,  Philadelphia." 

[Accepted — C.  and  G.] 

"  Dollars  3000.  Philadelphia,  May  26, 1847. 

"  Sixty  days  after  date  please  pay  to  my  own  order  three  thou- 
sand dollars,  and  charge  the  same  to  account  of,     Yours,  etc., 

S.  M." 

"To  Messrs.  C.  and  G.,  Philadelphia." 

[Accepted — C.  and  G.] 
being  then  and  there  the  said  two  drafts,  of  the  value  of  six 
thousand  dollars.  And  the  inquest  aforesaid  do  further  present, 
that  afterwards,  to  wit,  on,  etc.,  the  said  S.  M.,  the  said  drafts 
being  so  accepted  by  the  said  C.  and  G.,  indorsed  the  same  in 
blank,  and  that  afterwards,  to  wit,  at  the  respective  dates  and 

589 


(573)  OFFENCES  AGAINST  PKOPERTY. 

times  when  the  said  drafts  so  accepted  became  due  and  payable 
according  to  the  tenor  thereof  respectively,  they,  the  said  C.  and 
G.,  by  reason  of  the  said  acceptances,  were  obliged  to  pay  the 
amounts  thereof,  and  did  pay  the  sum  of  six  thousand  dollars  in 
cash,  being  then  and  there  the  moneys  of  the  said  W.  C.  Jr.,  and 
P.  P.  G.,  trading  as  C.  and  G.,  to  the  great  damage  of  them  the 
said  C.  and  G.,  contrary,  etc.,  and  against,  etc.  {Conclude  as  in 
book  1,  chai)ter  3.) 

(573)  Obtaining  acceptances  by  the 'pretence  that  defendants  had  certain 
goods  in  storage  subject  to  prosecutor^ s  order.{d) 

That  J.  J.  M.,  late,  etc.,  with  intent  to  and  contriving  and  in- 
tending unlawfully,  fraudulently,  designedly,  and  deceitfully  to 
cheat  and  defraud  0.  P.  P.  and  W.  T.  E.,  who  at  the  time  here- 
inafter mentioned,  to  wit,  on  the  ninth  day  of  June,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  forty-five,  were  co- 
partners in  trade,  under  the  firm  of  P.  and  E.,  of  the  said  city 
and  county,  on,  etc.,  at,  etc.,  did  falsely,  unlawfully,  knowingly, 
and  designedly  pretend  and  state  to  the  said  0.  P.  P.  and  W.  T. 
E.,  then  copartners  as  aforesaid,  that  he  the  said  J.  J.  M.  and  a 
certain  D.  E.  T.,  then  copartners  in  trade,  under  the  firm  of  T. 
and  M.,  of  the  city  of  New  York,  then  had  received  from  cer- 
tain persons  trading  together,  under  the  firm  of  S.  and  S.,  on 
storage,  in  certain  warehouses  of  the  said  firm  of  said  T.  and 
M.,  in  the  said  city  of  Kew  York,  numbered  24,  26,  28,  and  30 
Leonard  street,  twenty-two  hundred  barrels  of  cistern  sugars, 
and  they  the  said  J.  J.  M.  and  D.  E.  T.,  copartners  as  aforesaid, 
had  agreed  to  hold  the  same  subject  to  the  order  of  the  said  firm 
of  S.  and  S.,  and  that  the  said  T.  and  M.  then  had  and  held  the 
same  twenty-two  hundred  barrels  of  cistern  sugars  in  the  ware- 
houses aforesaid,  and  the  said  J.  J.  M.  did  then  and  there  execute 
a  certain  paper  writing,  in  the  words  and  figures  following,  to 
wit :  "  Philadelphia,  June  9th,  1845,  received  from  Messrs.  S.  and 
S.,  on  storage  in  our  warehouses,  at  Nos.  24,  26,  28,  and  30 
Leonard  street,  New  York,  twenty-two  hundred  barrels  of  cistern 
sugars,  which  we  agree  to  hold  subject  to  their  order.     T.  and 

[d)  This  count  was  drawn  by  eminent  counsel  in  Philadelphia,  in  1847.     The 
defendant  was  acquitted. 

590 


FALSE  PRETENCES.  (574) 

M."  And  the  said  firm  of  S.  and  S.  did  then  and  there  indorse 
the  said  paper  writing  with  the  following  indorsement :  "  Deliver 
the  within  to  the  order  of  Messrs.  P.  and  E.  S.  and  S."  And 
the  said  J.  J.  M.  did  then  and  there  deliver  to  the  said  0.  P.  P. 
and  W.  T.  E.,  copartners  as  aforesaid,  the  said  paper  writing ; 
whereas,  in  truth  and  in  fact,  the  said  J.  J.  M.  and  D.  E.  T.,  co- 
partners as  aforesaid,  had  not  received  the  said  twenty-two  hun- 
dred barrels  of  cistern  sugars  in  the  said  warehouses,  nor  had 
they  the  said  twenty-two  hundred  barrels  of  cistern  sugars  in 
said  warehouses,  nor  had  they  any  such  warehouses  as  the  said 
J.  J.  M.  did  then  and  there,  to  wit,  on  the  day  and  year  aforesaid, 
at  the  city  and  county  aforesaid,  falsely  pretend  and  state  to  the 
said  0.  P.  P.  and  W.  T.  E.,  then  copartners  as  aforesaid.  And 
the  inquest  aforesaid,  on  their  oaths  and  affirmations  aforesaid, 
do  further  present  and  say,  that  the  said  J.  J.  M.  did  designedly, 
by  the  false  pretences  aforesaid,  with  intent  to  cheat  and  defraud 
the  said  0.  P.  P.  and  W.  T.  E.,  under  the  name  and  firm  of  P. 
and  E.,  then  and  there,  to  wit,  on,  etc.,  at,  etc.,  obtain  from  the 
said  0.  P.  P.  and  W.  T.  E.,  then  copartners  as  aforesaid,  their 
acceptance  of  the  following  drafts  or  bills  of  exchange,  drawn 
by  the  said  J.  J.  M.  and  D.  E.  T.,  copartners  as  aforesaid,  upon 
the  said  P.  and  E.,  in  favor  of  themselves,  the  said  T.  and  M., 
etc.  {setting  forth  drafts  as  in  last  form),  to  the  great  damage  of 
them  the  said  0.  P.  P.  and  W.  T.  E.,  copartners  as  aforesaid,  to 
the  evil  example  of  all  others  in  like  cases  offending,  against 
etc.,  and  contrary,  etc.  {Conclude  as  in  hook  1,  chapter  3.) 
{Add  other  counts,  setting  forth  specially  the  bills  obtained,  etc.) 

(574)  For  receiving  goods  obtained  by  false  pretences,  under  the 
English  statute. {e) 

That  A.  B.,  late  of,  etc.,  on,  etc.,  at,  etc.,  unlawfully,  know- 
ingly, and  fraudulently  did  receive  ten  gold  watches,  of  the  value 
of  one  hundred  pounds,  of  the  goods  and  chattels  of  E.  F.,  by 
one  C.  D.  then  lately  before  unlawfully,  knowingly,  and  design- 
edly obtained  from  the  said  E.  F.  by  false  pretences, {f)  that  is  to 


U)  Dickinson's  Q.  S,  6th  cd.  444. 


[/)  Essential  to  be  stated  ;  as  also  that  the  receiver  knew  them  to  be  so  un- 
lawfully obtained,  R.  v.  Wilson,  2  Mood.  C,  C.  52.  "Unlawfully  taken  and 
carried  away"  will  not  suffice,  S.  C.     Dickinson's  Q.  S.  6th  ed.  444. 

591 


(574a)  OFFENCES    AGAINST    PROPERTt. 

say,  by  falsely  pretending  that  he,  the  said  C.  D.,  was  the  ser- 
vant of  one  G.  H.,  and  had  been  sent  by  the  said  G.  H.  for  the 
said  watches,  to  be  inspected  by  him,  whereas,  in  truth  and  in 
fact,  he,  the  said  C.  D.,  was  not  the  servant  of  the  said  G.  H., 
nor  sent  by  him  for  the  said  watches  to  be  inspected  by  him,  or 
for  any  other  purpose  whatever;  he,  the  said  A.  B.,  at  the 
time  he  so  received  the  said  gold  watches,  on,  etc.,  at,  etc.,  then 
and  there  well  knowing  the  same  to  have  been  so  unlawfullt/  obtained 
by  the  said  C.  D.  from  the  said  E.  F.  by  false  pretences  afore- 
said ;  against,  etc.,  and  against,  etc.  {Conclude  as  in  book  1, 
chapter  3.) 

(574«)  Another  form.{ g) 

One  silver  tankard  (specifying  thing  received),  of  the  goods 
and  chattels  of  J.  N.,  then  lately  before  unlawfully,  knowingly, 
and  designedly  obtained  from  the  said  J.  N.  by  false  pretences, 
unlawfully  did  receive  and  have,  he,  the  said  J.  S,,  at  the  time 
when  he  so  received  the  said  silver  tankard  as  aforesaid,  then 
well  knowing  the  same  to  have  been  unlawfully,  knowingly, 
and  designedly  obtained  from  the  said  J.  N.  by  false  pretences, 
against  the  form,  etc. 

[g)  Arch.  C.  P.  19th  ed.  p.  477.  This  is  preferable  to  form  574,  and  meets 
more  fully  the  requirements  of  R.  v.  Wilson,  2  Mood.  C.  C.  52  ;  R.  v.  Gold- 
smith, L.  R.  2  C.  C.  74. 

592  * 


DES-rtlOYING    A   VESSEL   AT    SEA,    ETC.  {^"i^) 


CHAPTER  XI. 

DESTROYING  A  VESSEL  AT   SEA,  ETC. (a) 

(575)  Sinking  and  destroying  a  vessel,  the  parties  not  being  owners  in 

■whole  or  in  part,  under  the  U..  S.  statute. 

(576)  Casting  away  a  vessel  with  intent  to  prejudice  the  owners  under  the 

English  statute. 

(575)  Sinking  and  destroying  a  vessel^  the  parties  not  being  owners 
in  whole  or  in  part,  under  the  U.  S.  statiite.{b) 

That  A.  B.,  etc.,  late,  etc.,  and  C.  D.,  late,  etc.,  at,  etc.,  on, 
etc.,  on  the  high  seas,  out  of  the  jurisdiction  of  anj  particular 
state  of  the  United  States  of  America,  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States,  and  within  the 
jurisdiction  of  this  court,  they  the  said  A.  B.  and  C.  D.  then 
and  there  belonging  to  a  certain  vessel,  being  a  called  the 

which  said  was  not  owned  in  whole  or  in  part, 

either  jointly  or  severally,  by  them  the  said  A.  B.  and  C.  D.  or 
either  of  them,  and  which  said  was  then  and  there  the 

property  of  some  person  or  persons  to  the  jurors  aforesaid  as  ^-et 
unknown,  they  the  said  A.  B.  and  C.  D.  then  and  there  on  tlie 

day  of  aforesaid,  being  in  and  on  board  the  said 

on  the  high  seas  as  aforesaid,  did  then  and  there  feloni- 
ously, wilfull}^,  and  corruptly  cast  away  and  destroy  the  said 

called  the  against,  etc.,  and  against,  etc.     {Conclude 

as  in  book  1,  chapter  3.) 

Second  count. 

{Same  as  first  count,  substituting) :  "  was  then  and  there  the 
property  of  then  and  still  being  citizens  of  the  United 

States  of  America,"  for  "  was  then  and  there  the  property  of 
some  person  or  persons  to  tlie  jurors  aforesaid  as  yet  unknown." 

[a)  See  for  prosecution  for  burning  a  vessel,  etc.,  U.  ^.  v.  Lockman,  1  Best. 
L.  Rep.  N.  S.  151,  Aug.  1848.     See  also  Wh.  Cr.  L.  8th  cd.  §§  l^dAetseq. 

For  consjiiracy,  see  infra,  639. 

{h)  This  form  was  used  in  U.  S.  v.  Snow,  in  New  York,  in  1847,  without 
exception  being  taken  to  it. 

VOL.  I.— 38  593 


(575)  OFFENCES  AGAINST  PROPERTY. 

Third  count. 

That  A.  B.  and  C,  D.,  late,  etc.,  heretofore,  on,  etc.,  the  said 
A.  B.  then  and  there  belonging,  in  the  capacity  of  master  [or 
otherwise)^  to  a  certain  vessel,  being  a  called  the  the 

l^roperty  of  a  certain  citizen  or  citizens  of  the  United  States  of 
America,  to  wit,  of  and  the  said  C.  D.  then  and   there 

belonging  to  the  said  called  the  in  the  capacity  of 

mate  (or  otherwise)^  of  which  said  they  the  said  A.  B.  and 

C.  D.  were  not  owners,  nor  was  either  of  them  an  owner,  did 
then  and  there  feloniously,  wilfully,  and  corruptly  cast  away  and 
destroy  the  said  called  the  against,  etc.,  and  against, 

etc.     {Conclude  as  in  hook  1,  chajyter  3.) 

Fourth  count. 

That  A.  B.,  late,  etc.,  and  C.  D,,  late,  etc.,  heretofore,  etc.,  did 
then   and  there,  in  and  on  board  of   a  certain  vessel,  being  a 
called  the  the  property  of  then  and  still  being 

citizens  of  the  United  States  of  America,  to  which  said 
they  the  said  A.  B.  and  C.  D.  then  and  there  belonged,  the  said 
A.  B.  as  and  the  said  C.  D.  as  and  of  which  said 

the  said  A.B.  and  C.  D.  were  not  owners,  nor  was  either 
of  them  an  owner,  feloniously,  wilfully,  and  corruptly  procure 
the  said  called  the  to  be  cast  away  and  destroyed, 

against,  etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chajyter  3.) 

Fifth  count. 

That  the  said  A.  B.  and  the  said  C.  D.,  heretofore,  to  wit,  on, 
etc.,  did  then  and  there,  in  and  on  board  of  a  certain  vessel, 
being  a  called  the  the  property  of  a  certain  person 

or  persons,  being  a  citizen  or  citizens  of  the  United  States  of 
America,  to  the  said  jurors  unknown,  to  which  said  they 

the  said  A.B.  and  C.  D.  then  and  there  belonged,  and  of  which 
said  the  said  A.  B.  and  C.  D.  were  not  owners,  nor  was 

either  of  them  an  owner,  feloniously,  wilfully,  and  corruptly 
cast  away  and  destroy  the  said  called  the  against, 

etc.,  and  against,  etc.     {Conclude  as  in  book  1,  chapter  3.) 
594 


DESTKOYING    A    VESSEL    AT    SEA,    ETC.  i^"^^) 

Sixth  count. 

That   the   said  A.  B.  and    the   said   C.  D.,  on,  etc.,  at,  etc., 
belonged  to  a  certain  vessel,  being  a  called  the  and 

were  then  and  there,  in  and  on  board  the  said  the  said  A.  B. 

in  the  capacity  of  and  the  said  C.  D.  in  the  capacity  of 

the  said  A.  B.  and  C.  D.  not  being  owners,  either  in  whole 
or  in  part,  nor  either  of  them  being  an  owner,  either  in  whole 
or  in  part,  of  the  said  but  the  said  being  then  and 

there  the  property  of  then  and  still  being  citizens  of  the 

United  States  of  America,  and  that  the  said  A.  B.  and  C.  D.  so 
being  then  and  there  on  the  high  seas  as  aforesaid,  in  and  on 
board  of  the  said  as  aforesaid,  did  then  and  there  with 

force  and  arms,  feloniously,  wilfully,  and  corruptly  make  a 
certain  hole,  of  the  width  of  inches,  and  of  the  depth  of 

in  and  through  the  said  by  means  of  and  through 

which  said  hole,  so  made  as  aforesaid,  the  sea  entered,  filled, 
and  sunk  the  said  and  the  said  A.  B.  and  C.  D.  did  then 

and  there,  by  the  means  aforesaid,  feloniously,  wilfully,  and 
corruptly  destroy  said  against,  etc.,  and  against,  etc.     {Con- 

clude as  in  book  1,  cliapter  3.) 

Seventh  count. 

{Same  as  sixth  county  substituting):  '■•  the  said  being  then 

and  there  the  property  of  a  certain  person  or  persons,  being  a 
citizen  or  citizens  of  the  said  United  States,  to  the  said  jurors 
unkuown,"/or  "  the  said  being  then  and  there  the  property 

of  then  and  still  being  citizens  of  the  United  States  of 

America." 

Eighth  count. 

{Same  as  sixth  count,  substituting) :  "  feloniously,  wilfully,  and 
corruptly  procure  a  certain  hole,  of  the  width  of  inches, 

and  of  the  depth  of  to  be  made  in  and  through  the  star- 

board side  (or  otherwise)  of  the  said  by  means  of  and  through 

which  said  hole,  so  made  as  aforesaid,  the  sea  entered,  filled,  and 
sunk  the  said  and  so  the  said  A.  B.  and  C.  D.  did  then 

and  there,  by  the  means  last  aforesaid,  feloniously,  wilfnllj^  and 
corruptly  procure  the  said  to  be  cast  away  and  destroyed," 

for  "  feloniously,  wilfully,  and  corruptly  make  a  certain  hole,  of 

595 


(576a)  OFFENCES  AGAINST  PROPERTY. 

the  width  of  inches,  and  of  the  depth  of  in  and  through 

the  said  by  means  of  and  through  which  said  hole,  so  made 

as  aforesaid,  the  sea  entered,  filled,  and  sunk  the  said  and 

the  said  A.  B.  and  CD.  did  then  and  there,  by  the  means  afore- 
said, feloniously,  wilfully,  and  corruptly  destroy  said  ." 
{For  final  count,  see  ante,  17,  18,  181  n.,  239  n.) 

(576)  Casting  away  a  vessel  vnth  intent  to  prejudice  the  oicners, 
under  the  English  statute.{c) 

That  E.  L.,  late,  etc.,  a  certain  vessel  called  the  D.,  the  prop- 
erty of  A.  H.  and  others,  on  a  certain  voyage  upon  the  high 
seas  then  being,  then  and  there,  upon  the  high  seas,  within  the 
jurisdiction  of  the  admiralty  of  England,  and  within  the  juris- 
diction of  the  central  criminal  court,  feloniously,  unlawfully, 
and  maliciously  did  cast  away  and  destroy,  with  intent  to 
prejudice  the  said  A.  H.  and  another,  being  part  owners  of  the 
said  vessel,  against  the  form  of  the  statute,  etc.  And  further, 
etc.,  that  P.  M.,  etc.,  before  the  said  felony  was  committed  in 
form  aforesaid,  at  London,  aforesaid,  and  within  the  jurisdiction 
of  the  said  central  criminal  court,  did  feloniously  and  maliciously 
incite,  move,  aid,  counsel,  hire,  and  command  the  said  E.  L.  the 
said  felony,  in  manner  and  form  aforesaid,  to  do  and  commit, 
against,  etc.     {Conclude  as  in  hook  1,  chapter  3.) 

(576rt)  Another  form. 

That  J.  S.,  on,  etc.,  at,  etc.,  on  board  a  certain  ship,  called 
the  the  property  of  J.  N".,  on  a  certain  voyage  upon  the 

high  seas,  then  being  upon  the  high  seas,  feloniously,  unlaw- 
fully, and  maliciously  did  set  fire  to  the  said  ship,  with  intent 

(f)  R.  V.  Wallace,  1  C.  &  M.  113. 

The  statute  1  Vict.  c.  89,  s.  G,  enacts,  that  "whosoever  shall  unlawfully  and 
maliciously  set  fire  to,  or  in  any  wise  destroy  any  ship  or  vessel,  whether  the 
same  be  complete  or  in  an  unfinished  state,  or  shall  unlawfully  and  maliciously 
set  fire  to,  cast  away,  or  in  any  wise  destroy  any  ship  or  vessel,  with  intent 
thereby  to  prejudice  any  owner  or  part  owner  of  such  ship  or  vessel,  or  of  any 
goods  on  board  the  same,  or  of  any  person  that  hath  underwritten  or  shall  under- 
write any  policy  of  insurance  upon  such  ship  or  vessel,  or  the  freight  thereof,  or 
upon  anv  goods  on  board  the  same,  shall  be  guilty  of  felony,"  etc.  The  11th 
section  of  the  same  statute  enacts,  that  "in  the  case  of  every  felony  punishable 
under  this  act,  every  principal  in  the  second  degree,  and  every  accessary  before 
the  fact,  shall  be  punishable  with  death  or  otherwise,  in  the  same  manner  as  the 
principal  in  the  first  degree  is  by  this  act  punishable,"  etc. 

596 


DESTROYING    A    VESSEL    AT    SEA,    ETC.  (olQb) 

thereby  to  prejudice  the  said  J.  N.,  the  owner  {o?^  part  owner), 
of  the  said  ship ;  {or  one  E.  H.,  the  owner  of  certain  goods, 
being  laden  and  being  on  board  the  said  ship ;  07^  one  E.  F., 
who  had  before  then  underwritten  a  certain  policy  of  assurance 
on  the  said  ship,  which  said  policy  was  then  in  full  force  and 
operation),  against,  etc.(<'0 

(5766)  Setting  jire  to  ship^  under  English  statute. 

That  J.  S.,  on,  etc.,  at,  etc.,  feloniously,  unlawfully,  and  mali- 
ciously did  set  fire  to  a  certain  ship  called,  etc.,  the  property  of 
J.  !N".,  against,  etc.(<') 

{(i)  Arch.  C.  p.  19th  ed.  565;  referring  to  R.  v.  Smith,  4  C.  &  P.  569;  R. 
V.  Bowver,  [d.  559.  ' 

(e)   Arch.  C.  P.  19th  ed.  p.  564. 

597 


EI^D  OF  VOL.  1. 


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